G. Velmurugan vs Soundaravalli

P.R. Shivakumar, J.—These Civil Revision Petitions have been preferred against the order of the learned Principal District Judge, Ramanathapuram, dated 9.7.2012 made in Election O.P. No. 5 of 2011 declaring the election of Velmurugan, the First Respondent in the Election O.P. as invalid as he was disqualified from contesting the election for the post of President of Peraiyur Panchayat and declaring Soundaravalli, the Petitioner in the Election O.P. to have won the election. The candidate declared by the Election Officer as the elected candidate for the post of President, Peraiyur Panchayat, namely G. Velmurugan, who figured as Respondent No. 1 in the Election OP, has filed C.R.P. (MD). No. 1474 of 2012 (NPD). Yet another candidate who lost the election, namely S. Sathiaselvan, who figured as the Second Respondent in the Election OP, has chosen to prefer C.R.P. No. 1853 of 2012 challenging the very same order of the learned Principal District Judge, Ramanathapuram, insofar as the learned Principal District Judge in the said order had held that S. Sathiaselvan was also disqualified to contest the election to the Office of the President of Peraiyur Panchayat under the Tamil Nadu Panchayats Act, 1994. Since both the Civil Revision Petitions have been filed by two different persons, who figured as Respondents 1 & 2 respectively in the same Election OP, challenging the very same order, both the Civil Revision Petitions were heard together and are now disposed by a common order.

The election to the Office of the President, Peraiyur Panchayat in Kamuthi Taluk and Panchayat Union, Ramanathapuram District was held on 19.10.2011. (1) Soundaravalli W/o. Niraikulathan, (2) Velmurugan S/o. Gandhi, (3) Sathiaselvan S/o. Sathaiah, (4) Sakthivel S/o. Moses @ Udaiyan, (5) Palanisamy S/o. Subramani, and (6) Muthaiah S/o. Muthaiah were the six contestants, who contested the election. They were allotted the following symbols:

"Soundaravalli - Lock and Key

Velmurugan - Scissors

Sathiaselvan - Brinjal

Sakthivel - Handroller

Palanisamy - Spectacles

Muthaiah - Ladder"

The polling was held on 19.10.2011 and after polling, counting of votes was done on 21.10.2011 and the same yielded the following results regarding the votes secured by each one of the contestants:

"Soundaravalli - 860

Velmurugan - 874

Sathiaselvan - 825

Sakthivel - 6

Palanisamy - 455

Muthaiah - 331

The votes declared invalid - 133

Total tally of votes - 3484"

Accordingly, the Returning Officer, namely the Block Development Officer, Kamuthi (6th Respondent in both the Civil Revision Petitions) declared Velmurugan to have won the election.

Soundaravalli, who figures as the First Respondent in both the Civil Revision Petitions, filed Election O.P. No. 5 of 2011 under Section 258 of the Tamil Nadu Panchayats Act, 1994 and Rule 122 of Tamil Nadu Panchayats (Election) Rules, 1995 contending that Velmurugan was disqualified from contesting the election, as he had subsisting contracts with Peraiyur Panchayat and also Kamuthi Panchayat Union; that though the said objection for accepting his nomination was raised by her at the time of scrutiny of Nomination Papers, the Election Officer disregarded her objection, accepted the nomination of Velmurugan and conducted the election; that similar objection was also raised in respect of the nomination of Sathiaselvan on the ground that his name was not found in the Voters List pertaining to Peraiyur Panchayat and the said objection was also brushed aside by the Election Officer, namely the Commissioner, Kamuthi Panchayat Union; that during the counting, she and her agent raised similar objection and requested the Election Officer to reject the votes polled in favour of Velmurugan (the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election O.P.) and Sathiaselvan (the Petitioner in C.R.P. (NPD)(MD) No. 1853 of 2012/Second Respondent in the Election O.P.) and declare the results based on the votes secured by other four contestants, namely Soundaravalli, Sakthivel, Palanisamy and Muthaiah; that the Election Officer disregarded the objection and completed the counting, which resulted in the Election Officer declaring Velmurugan to have won the election and that since the Returned Candidate was disqualified from contesting the election, his election should be declared invalid and she, who had got the next higher number of votes, should be declared to have won the election. Soundaravalli, who figures as the First Respondent in both the Civil Revision Petitions, chose to file the above said Election Original Petition, namely Election O.P. No. 5 of 2011 on the file of the learned Principal District Judge, Ramanathapuram arraying the other five contestants, namely Velmurugan, Sathiaselvan, Sakthivel, Palanisamy and Muthaiah as Respondents 1 to 5 and the Election Officer/Commissioner, Panchayat Union, Kamuthi, as Respondent No. 6.

Out of Six Respondents in the Election Original Petition, Sakthivel, Palanisamy and Muthaiah, who had been arrayed as Respondents 3 to 5, did not contest the case and they were set ex parte. Velmurugan and Sathiaselvan, who figured as Respondents 1 & 2 in the Election Original Petition (the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012, the Petitioner in C.R.P. (NPD)(MD) No. 1853 of 2012) and the Election Officer who figured as the 6th Respondent in the Election OP alone resisted the Election Original Petition by filing Counter Statements.

In the Counter Statement, Velmurugan (the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election Original Petition), had contended that he was not registered as a Contractor either in Peraiyur Panchayat or in Kamuthi Panchayat Union subsequent to the year 2005; that he did not function as a Contractor subsequent to the said year and that hence, he did not incur any disqualification as contended by Soundaravalli (First Respondent in both the CRPs/Petitioner in the Election O.P). It was also contended by him in the Counter Statement that the averments made in the Election O.P. to the effect that the Election Officer was requested to reject the votes secured by the Revision Petitioners/Respondents 1 & 2 in the Election Original Petition and to declare the results based on the votes secured by the other four contestants did not have any truth in it, since no such objection was raised and no such request was made before the Election Officer at the time of counting of the votes. It was also contended that after the counting was over and the votes secured by each contestant were informed to all the contestants, Soundaravalli (First Respondent in both the Civil Revision Petitions/Petitioner in the Election Original Petition) alone made a request for recounting of the votes that had been rejected during the counting; that the request for recounting of those votes rejected as invalid was accepted and such votes were again reconsidered and recounted and that only thereafter Velmurugan (the Petitioner in C.R.P. No. 1474 of 2012/First Respondent in the Election O.P.) was properly declared to have won the election, as he had secured more number of votes than the others.

Sathiaselvan, the Petitioner in C.R.P. (NPD)(MD) No. 1853 of 2012/Second Respondent in the Election Original Petition, in his Counter Statement contended that he was not a necessary party in the Election Original Petition and hence, the Election OP as against him should be dismissed in limine; that the averments made in the Election OP to the effect that he was disqualified from contesting the election to the Office of the President of Peraiyur Panchayat as if his name was not found in the Voters List pertaining to the said Panchayat were made against the truth; that though he was a native of Peraiyur, Kamuthi Taluk, they had migrated to Madurai due to the employment of his father, but still he continued to reside in Peraiyur after renovating his ancestral house; that he had got his Family Card bearing Sl. No. 672 of 2010 transferred from Madurai North circle to Peraiyur Village, Kamuthi Taluk, Ramanathapuram District; that his name had been included in the Voters List for Mudhukulathur Assembly Constituency in Part 47 with Sl. No. 657 pursuant to the Order of the Electoral Registration Officer (Revenue Divisional Officer, Paramakudi) made in her proceedings in Na.Ka.B2/4058/2011 dated 28.9.2011; that only based on the same and on verification of the particulars, his nomination was accepted by the Election Officer and that he had been unnecessarily made a party to the Election Original Petition in order to harass him.

The Election Officer, who figures as the 6th Respondent in both the Civil Revision Petitions, who had been arrayed as 6th Respondent in the Election OP, filed a Counter in the Election OP contending that Velmurugan (the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election O.P) had not been included in the List of Contractors under Kamuthi Panchayat Union after 2005; that however he had been allotted a contract work in Peraiyur Panchayat through tender pursuant to the proceedings of the District Collector in Na.Ka. No. A2/1967/2010 dated 19.8.2010 for which he had paid Rs. 264/- under the Receipt No. 5647 dated 3.3.2011 as cost of the tender schedule and that he had done the work as per the contract, but the entire work pertained to Peraiyur Panchayat. It was also contended by the 6th Respondent (Election Officer) that a Contractor should get his registration renewed year by year by paying the prescribed fee and that from the records it was ascertained that the registration of Velmurugan, as Contractor, had been cancelled. It was also contended that Sathiaselvan, the Revision Petitioner in C.R.P. (NPD)(MD) No. 1853 of 2012/Second Respondent in the Election O.P., was not disqualified from contesting the election to the Office of the President, Peraiyur Panchayat as the Election Rules permit a person, whose name is not found in the Voters List provided such person gets an order from the Revenue Divisional Officer for the inclusion of his name in the Voters List and that therefore, there was no irregularity in accepting the nomination of Sathiaselvan, the Revision Petitioner in C.R.P. No. 1853 of 2012/Second Respondent in the Election Original Petition.

In the enquiry (trial) before the Election Tribunal (learned Principal District Judge, Ramanathapuram), Soundaravalli, the First Respondent in the both the Civil Revision Petitions/the Petitioner in the Election OP, figured as the sole witness on her side and she produced as many as 21 documents marked as Ex. P1 to Ex. P21. Velmurugan, the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in Election OP, deposed as RW1. One Gangaram deposed as RW2. Sathiaselvan, the Revision Petitioner in C.R.P. (NPD)(MD) No. 1853 of 2012/Second Respondent in the Election Original Petition, figured as RW3 and Thiru. T.R. Sathyamoorthy, the Commissioner of Kamuthi Panchayat Union, deposed as RW4. On the side of the Respondents in the Election OP, ten documents were marked as Exs. R1 to R10.

The Election Tribunal (learned Principal District Judge, Ramanathapuram), after considering the pleadings and evidence in the light of the arguments advanced on both sides, accepted the case of the Election Petitioner, namely Soundaravalli (the First Respondent in both the Civil Revision Petitions), held the Revision Petitioners, namely Velmurugan and Sathiaselvan, who figured as Respondents 1 & 2 in the election O.P. to be disqualified from contesting the election to the Office of the President, Peraiyur Panchayat, consequently declared the election of Velmurugan (the Revision Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election O.P.) to be invalid and declared Soundaravalli (the First Respondent in both the Civil Revision Petitions/Election Petitioner) to have won the election to the Office of the President, Peraiyur Panchayat.

The said order of the Election Tribunal (learned Principal District Judge, Ramanathapuram) is challenged by Velmurugan in C.R.P. (NPD)(MD) No. 1474 of 2012. Similarly, Sathiaselvan, one of the defeated candidates, who figured as the Second Respondent in the Election Original Petition, has chosen to prefer C.R.P. (NPD)(MD) No. 1853 of 2012 challenging the finding of the Election Tribunal (learned Principal District Judge, Ramanathapuram) that he was also disqualified from contesting the election to the Office of the President, Peraiyur Panchayat, as his name did not find a place in the Voters List pertaining to the said Panchayat. Both the Civil Revision Petitions have been filed invoking the power of superintendence of this Court under Article 227 of the Constitution of India.

The points that arise for consideration in these Civil Revision Petitions are:

"(1) Whether the finding of the Election Tribunal (Principal District Judge, Ramanathapuram) holding that Velmurugan and Sathiaselvan, the Petitioners in the Civil Revision Petitions, who figured as Respondents 1 & 2 in the Election Original Petition, were disqualified from contesting the election to the Office of the President, Peraiyur Panchayat, is erroneous, illegal and liable to be set aside?

(2) Whether the Order of the Election Tribunal (learned Principal District Judge, Ramanathapuram) declaring the election of Velmurugan (the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election Original Petition) to be invalid and declaring Soundaravalli (the First Respondent in both the Civil Revision Petitions/the Petitioner in the Election OP) to have won the election is erroneous, unsustainable in law and liable to be set aside?"

This Court heard the arguments advanced by Mr. J.V. Sivakumar, learned Counsel representing M/s. S. Sethuaman & S. James, Counsel on record for the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/2nd Respondent in C.R.P. (NPD)(MD) No. 1853/2012, by Mr. J. Ami, learned Counsel for the Petitioner in C.R.P. (NPD)(MD) No. 1853 of 2012/2nd Respondent in C.R.P. (NPD)(MD) No. 1474 of 2012, by Mrs. A. Arumugam, learned Counsel representing M/s. Ajmal Associates, Counsel on record for the 1st Respondent in both the Civil Revision Petitions/Petitioner in the Election OP, by Mr. D. Sivakumar, learned Counsel for the Respondents 3 & 5 in C.R.P. (NPD)(MD) No. 1474 of 2012, by Mr. P. Mahindra Varma, learned Counsel for the Respondents 3 & 5 in C.R.P. (NPD)(MD) No. 1853 of 2012, by Mr. M. Sethuraman, learned Counsel for the 4th Respondent in both the C.R. Ps. and by Mr. R. Velmurugan, learned Government Advocate representing the 6th Respondent (Election Officer) in both the C.R. Ps. were heard. The materials available on record were also perused.

It is a fact admitted by the parties that the election to the Office of the President, Peraiyur Panchayat, Kamuthi Panchayat Union, Ramanathapuram District was held in the month of October 2011 and there were six contestants. The polling was held on 19.10.2011, whereas the counting of votes and declaration of the results were made on 21.10.2011. It is also not in dispute that the total votes polled were 3484 in number, out of which 133 were rejected as invalid and that the votes secured by each one of the contestants were as follows:

As Velmurugan turned out to be the person, who secured the highest number of votes, the Election Officer, namely the 6th Respondent, declared him to have won the election to the Office of the President, Peraiyur Panchayat.

The candidate, who got the second highest votes, namely Soundaravalli, chose to challenge the election of Velmurugan based on her contention that Velmurugan was disqualified from contesting the election to the Office of the President of Peraiyur Panchayat, since, according to her, Velmurugan did have a subsisting contract with the said Panchayat and Kamuthi Panchayat Union within which the said Panchayat came. She contended that, Velmurugan incurred disqualification under Section 37(3)(c) of the Tamil Nadu Panchayats Act, 1994. According to her, Velmurugan had got registered his name as Contractor in Peraiyur Panchayat and also in the Office of the Kamuthi Panchayat Union and on the basis of such registration, he had been allotted a contract in the Peraiyur Panchayat in accordance with the proceedings of the District Collector of Ramnad in his proceedings in Na.Ka. No. A2/1962/2010 dated 19.8.2010. It is her further contention that Velmurugan had paid Rs. 7,500/- as security deposit under Receipt No. 5647 dated 3.3.2011 and also paid a sum of Rs. 624/- under Receipt No. 5649 dated 3.3.2011 for the supply of Tender Schedules; that accordingly he was allotted the contract and that the bill for the work had not been settled between Velmurugan and Peraiyur Panchayat till the date of election.

The said contention made by Soundaravalli has been denied and disputed by Velmurugan. According to his contention, though he had been registered as a Contractor and was taking contract works under the concerned Panchayat till the year 2005, the said registration came to an end in 2005 itself and thereafter, he did not continue as a Contractor in the roll of Peraiyur Panchayat. It is also his contention that he was not a Contractor registered for Kamuthi Panchayat Union.

In this regard, the Election Petitioner Soundaravalli, in her testimony as P.W. 1 in the form of proof Affidavit, besides reiterating what she had stated in the Election Petition, chose to produce Xerox copies of the Register of Contractors of Peraiyur Panchayat for the years 2001-2002 to 2010-2011. The relevant pages for the years 2004-2005 & 2003-2004 have been marked as Exs. P8 & P9 respectively. The copy of Register of Contractors of Peraiyur Panchayat for the year 2011-2012 has been marked as Ex. P20. The First Respondent/the Petitioner in the Election OP, namely Soundaravalli, has also produced letters received from the Block Development Officer, Kamuthi in reply to an Application filed under Right to Information Act as Exs. P3 to P5. Ex. P3 is the reply of the Block Development Officer (Panchayats) in his proceedings Na.Ka.B4/982/09 dated 18.9.2011 to the effect that the work of laying concrete road in Ariyanachipuram and Keezhavalasai within Peraiyur Panchayat was allotted to the Contractor Ka. Velmurugan () for a sum of Rs. 3,00,000/-; that the said work was pending completion as on the date of the said communication and that the amount for the work done by the Contractor was not paid to him because of the non-completion of the work. Under Ex. P4, the Letter of the Block Development Officer (Panchayats) dated 25.11.2011, it has been stated that one Velmurugan (without any initial or father''s name) had not been registered as Contractor and the contract work taken by him by submitting tender to Peraiyur Panchayat in the year 2010-2011 was pending completion. Ex. P5 is a Covering Letter enclosing copies of two letters allegedly sent by Velmurugan, the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election OP, in his capacity as Peraiyur Panchayat President. In the first of those Letters of Velmurugan as Panchayat President, it had been stated that in the Peraiyur Panchayat, the work of laying concrete roads in Amman Street, North Street and South Street in Ariyanachipuram and in West Street in Keezhavalasai had been assigned by Peraiyur Panchayat to one Velmurugan for a sum of Rs. 3,00,000/-, whereas the said Velmurugan had not been registered as a Contractor in the said Panchayat. In the second of the letters, it had been stated that in the Register of Contractors maintained in Peraiyur Panchayat for the year 2011-2012, the name of G. Velmurugan of Mettupatti, had not been entered as a Contractor. The Register from 2001-2002 to 2010-2011 has been produced by the Petitioner in the Election OP. The name of the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012 does not find a place in the Register of Contractors of Peraiyur Panchayat for the year 2002-2003. Only from the year 2003-2004, his name (G. Velmurugan, s/o. Gandhi Nadar, Mettupatti) is found noted as a Contractor in Sl. No. 4. For the year 2004-2005 also, in the said register marked as Ex. P8, his name is found in Sl. No. 4. For subsequent years also his name is found mentioned as a Contractor. Ex. P18 is a Letter issued by the Block Development Officer (Panchayats), Kamuthi, to the Assistant Director (Panchayats), Ramanathapuram on 3.12.2011 to the effect that from the Discretionary Fund of the District Collector, the work of laying concrete roads had been allotted to G. Velmurugan, the then Panchayat Board President of Peraiyur and that since the work had not been completed, the amount had not been paid to the Contractor.

The election of G. Velmurugan came to be declared by the Election Tribunal (learned Principal District Judge, Ramanathapuram) to be null and void on the ground that the Returned Candidate, namely G. Velmurugan, was disqualified from contesting the election to the office of the President, Peraiyur Panchayat, as he had a subsisting contract with the Panchayat on the date of his nomination and that the same was suppressed by him in his Nomination Papers. The defence of Velmurugan was one of total denial. He contended before the Election Tribunal (Principal District Judge, Ramanathapuram) that he was not at all a registered Contractor either under Peraiyur Panchayat or in Kamuthi Panchayat Union within which Peraiyur Panchayat comes and that no contract work was undertaken by him either in the concerned Panchayat or in the Kamuthi Panchayat Union.

The specific case of the First Respondent/Petitioner in the Election OP, namely Soundaravalli, was that the Returned Candidate was a registered Contractor up to 2005-2006 for the Peraiyur Panchayat and Kamuthi Panchayat Union and that though his name ceased to appear in the Register of Contractors maintained by the Panchayat Union, he continued to be a registered Contractor in Peraiyur Panchayat. It was her further contention that G. Velmurugan son of Gandhi Nadar took the contract work of laying concrete road at Ariyanachipuram and Keelavalasai in Peraiyur Panchayat; that since the said work had not been completed, the bill for the same was not settled as on the date of announcement of election and on the date of election; that therefore, he was a person having an interest in a subsisting contract with the Panchayat, for which he contested the election for the post of President and that hence, he was disqualified from contesting the election for the said post under Section 37(3)(c) of the Tamil Nadu Panchayats Act, 1994. In order to prove her contention, she had produced the following documents:

"(1) Ex. P3-Letter dated 18.11.2011 received from the Commissioner, Kamuthi Panchayat Union bearing No. B4/982/09 sent in reply to the Application submitted by her under the Right to Information Act;

(2) Ex. P4-Letter dated 25.11.2011 received from the Commissioner, Kamuthi Panchayat Union bearing No. B4/982/09 sent in reply to the Application submitted by her under the Right to Information Act;

(3) Ex. P5-Letter dated 8.12.2011 received from the Commissioner, Kamuthi Panchayat Union bearing No. B4/982/09 sent in reply to the Application submitted by her under the Right to Information Act;

(4) Ex. P9-True Xerox copy of the Contractor''s Registration Register of Kamuthi Panchayat Union for the year 2003-2004;

(5) Ex. P17-Letter dated 29.2.2012 received from the Block Development Officer, Kamuthi Panchayat Union bearing No. Na.Ka.A3/1 118/11 sent in reply to the Application submitted by her under the Right to Information Act;

(6) Ex. P18-True Xerox copy of the Letter written by the Block Development Officer, Kamuthi to the Assistant Director, Ramanathapuram;

(7) Ex. P20-True Xerox copy of Register of Contractors for the period 2002-2003 to 2011-2012; and

(8) Ex. P21-True Xerox copy of Deposit Register of Contractors of Peraiyur Panchayat."

The Petitioner in the Election Original Petition, namely Soundaravalli, gave oral evidence as P.W. 1 in support of the contents of the above said documents. The extensive cross-examination made on behalf of the Petitioner in C.R.P. (MD)(NPD) No. 1474 of 2012/First Respondent in the Election OP was not fruitful insofar as those documents were true copies of the official documents maintained by the Commissioner, Kamuthi Panchayat Union and also in the office of the Peraiyur Panchayat.

From the above said documents, it is obvious that the Returned Candidate Velmurugan''s name was found in the Register of Contractors of Kamuthi Panchayat Union from the year 2003-2004 to 2005-2006 and thereafter, his name did not find a place in the said Register. However, in the Register of Contractors maintained in the office of Peraiyur Panchayat, his name appeared against the years 2002-2003 to 2010-2011. When he was confronted with such a documentary evidence, the Returned Candidate, who figured as RW1, chose to contend that he had nothing to do with the contract works done in the name of and that on the other hand, the son of the Petitioner in the Election OP, who was the Panchayat President for the previous term, would have taken the contract work in benami names or else he could have falsely created the entries in the Register retained by him even after his term came to an end, in order support the challenge made by the Petitioner against the election of Velmurugan as President of Peraiyur Panchayat. In this regard, there are certain vital admissions made by RW1, which will go to show that the contention of the Petitioner in the Election OP is probable, whereas the denial of the Returned Candidate is improbable. During cross-examination, RW1 has candidly admitted that once he was registered as a Contractor for Kamuthi Panchayat Union and after 2005-2006, he ceased to be a registered Contractor for the said Panchayat Union. Though he had contended that he did not do any contract work for Peraiyur Panchayat, at the latter part of his evidence, he admitted that he had done some (three) contract works prior to election and that no work was pending and no bill was pending at the time of election concerned in this case. However, for the communications sent by the Commissioner of Kamuthi Panchayat Union raising queries about the entrustment of the contract work of laying concrete road in Ariyanachipuram and Keelavalasi in Peraiyur Panchayat, he had sent two Letters to the effect that the contract for the said work was given to one G. Velmurugan; that the work was not completed and that the said G. Velmurugan was not a registered Contractor. The Xerox copies of the said letters certified by the Block Development Officer (Panchayats), Kamuthi were sent to Soundaravalli along with a covering Letter dated 18.12.2011 in reply to her Application dated 1.12.2011 under the Right to Information Act, 2005. The same has been marked as Ex. P5. The said Letters were sent by him after his election to the office of the President and they were signed by him in his capacity as President of Peraiyur Panchayat. Such an admission made by him was sought to be nullified by contending that there was another Velmurugan in the same village or the said work would have been taken on contract by the son of Soundaravalli and his friend Sankar Ganesh in his (RW1 ''s) name without his knowledge. A conjoint reading of the admissions found in those Letters and the Register of Contractors maintained in the office of Peraiyur Panchayat and the office of Kamuthi Panchayat Union will make it clear that it was Velmurugan, the Revision Petitioner in C.R.P. (MD)(NPD) No. 1474/2012, who was assigned the contract for laying the concrete roads at Ariyanachipuram and Keelavalasai.

It is also pertinent to note that there is a near similar name in the Register of Contractors which is "Velraman", whereas the name of the Contractor is identical with the name of the Revision Petitioner, namely "Velmurugan". His initial in English is ''G'' and his initial in Tamil is shown as , denoting son of Gandhi Nadar. In the Register, it has been clearly stated that G. Velmurugan/ son of Gandhi Nadar was the Contractor with whom the work had been entrusted. True copies of the Register of Contractors for Peraiyur Panchayat for the years 2001-2002 to 2010-2011 certified by the Commissioner, Kamuthi Panchayat Union has been produced by the Petitioner in the Election OP. Entries in it relating to the year 2004-2005 has been marked as Ex. P8 and entries relating to the year 2003-2004 has been marked as Ex. P9. In the said Register, the name of the Returned Candidate, namely G. Velmurugan is not found in the entries prior to the year 2003-2004. From the year 2003-2004, the name of the Returned Candidate, namely G. Velmurugan son of Gandhi Nadar, is found as one of the registered Contractors for the said Panchayat. He had shown solvency to the tune of Rs. 5,48,345/- and the same is found noted against his name in the said register. The Returned Candidate Velmurugan, whose election was challenged, while deposing as RW1, clearly admitted that the person named "Velmurugan son of Gandhi Nadar" was none other than himself and that his name was found in the register of Contractors for Peraiyur panchayat for the year 2003-2004. Based on his admission alone, the copy of the Register of Contractors for Peraiyur panchayat for the year 2003-2004 has been marked as Ex. P9. Similarly, he has admitted that his name is found as one of the Contractors for the year 2004-2005. Hence, the copy of the said page has been marked as Ex. P8. No doubt RW1 has denied the contention that his name is found in the Register of Contractors for the subsequent years up to 2010-2011. However, he does not dispute that G. Velmurugan son of Gandhi Nadar has been shown as one of the Contractors. At the same time, he has contended that he was not the person. It is his further evidence that he did not cause his name to be registered as one of the Contractors and such registration had been wrongly made.

Soundaravalli, the Election Petitioner, submitted an Application under Right to Information Act, 2005 on 16.11.2001 to the Block Development Officer (Panchayats), Kamuthi. The Block Development Officer (Panchayats), Kamuthi has sent a reply dated 18.11.2011 in his proceedings Na.Ka.P4/982/09. The same has been marked as Ex. P3. The information sought for by Soundaravalli and the reply given by the Block Development Officer (Panchayats), Kamuthi are as follows:

Similar reply was given to another Application of Soundaravalli dated 11.11.2011 seeking some particulars under the Right to Information Act regarding the registration of the Contractors in Kamuthi Panchayat Union and Peraiyur Panchayat. The said reply of the Block Development Officer (Panchayats), Kamuthi issued in his proceedings in Na.Ka.P4/982/09 dated 25.11.2011 has been produced and marked as Ex. P4. The information sought for by Soundaravalli and the reply given by the Block Development Officer (Panchayats), Kamuthi are as follows:

Pursuant to another Application filed by Soundaravalli under the Right to Information Act, 2005 the Block Development Officer, Kamuthi obtained information from Velmurugan regarding the above said contract works, for which the Petitioner in CPR (NPD) (MD) No. 1474 of 2012 and the first respondent in Election OP, namely Velmurugan, in his capacity as President, Peraiyur Panchayat, sent two Letters addressed to the Block Development Officer. They were received in the office of the Kamuthi Panchayat Union on 14.11.2011 as noted supra. The Xerox copies of those two Letters certified by the Block Development Officer, Kamuthi as true copies were sent to the First Respondent Soundaravalli along with a Covering Letter dated 8.12.2011 by the Block Development Officer, Peraiyur Panchayat, Kamuthi. The said Covering Letter and the copies of the Letters written by the Petitioner in CRP (NPD) (MD) No. 1474 of 2012/First Respondent in the Election OP, namely Velmurugan, have been produced as Ex. P5. In one of those letters, the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election OP, namely Velmurugan, has stated that the contract for the work of laying concrete road in Amman Koil Street, North and South streets in Ariyanachipuram and laying concrete road in West street in Keezhavalasai to the value of Rs. 3,00,000/- had been given to one Velmurugan, but the said Velmurugan''s name was not registered as a Contractor in Peraiyur Panchayat. In the other Letter, the Revision Petitioner in C.R.P. (NPD)(MD) No. 1474/2012 (Velmurugan) has stated that the name of G. Velmurugan of Mettupatti has not been registered in the Register of Contractors maintained in Peraiyur Panchayat for the year 2011-2012.

Ex. P13 is the Register showing the works allotted to the Contractors, nature of work, value of the contract, deposit, deduction towards Income Tax, name of the Contractor and the payment particulars. In the said document, the name of Velmurugan, Mettupatti is not found up to 2004. But from 2005, entries are found in the name of G. Velmurugan. From the said register, it is obvious that G. Velmurugan was doing contract works for Peraiyur Panchayat from 2005. At some places, his initial has been noted in English as ''G'' and at some places, his initial has been noted in Tamil as . Several works for the Panchayat came to be done by Velmurugan and yet another person by name C. Velraman had also been allotted works on contract. For the year 2010-2011, in Serial No. 29, the above said work of laying concrete road had been allotted to Velmurugan. In addition, in the very same year in Item 30, he had been allotted yet another work for a value of Rs. 1,00,000/-. The deposit amount of Rs. 7,500/- paid for the work of laying concrete road in Ariyanachipuram Amman Koil Street, Ariyanachipuram North and South Streets, Keezhavalasai West Street and Keezhavalasai Middle street has been noted in the said register. From Ex. P13, it is obvious that the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012, namely Velmurugan, was taking contract works from Peraiyur Panchayat and the contract for the work of laying concrete road in Ariyanachipuram Amman Koil Street, Ariyanachipuram North and South Streets, Keezhavalasai West Street and Keezhavalasai Middle street came to be given to him. The Block Development Officer (Panchayats), Kamuthi has sent a Letter dated 3.12.2011 addressed to the Assistant Director (Panchayats), Ramanathapuram informing that permission had been granted for laying concrete road in Peraiyur Panchayat to the value of Rs. 3,00,000/- from the discretionary fund of the District Collector; that the contract for the execution of the said work was given to G. Velmurugan and that since the final bill had not been received, no amount was disbursed. The said letter has been produced and marked as Ex. P18. The copy of the Register of Contractors of Peraiyur Panchayat for the year 2011-2012 certified by the Commissioner, Kamuthi Panchayat Union has been marked as Ex. P20. In the said Register, the Revision Petitioner Velmurugan has signed as the President of Paraiyur Panchayat. Ex. P7 is the copy of the Contractors Register for Peraiyur Panchayat certified by the Commissioner, Kamuthi Panchayat Union to be true copy. The name of Velmurugan is not found up to the year 2002-2003 and from the year 2003-2004, his name is found. From the entries found in Ex. P7, it is obvious that he had been registered as a Grade II Contractor with a solvency of Rs. 5,48,345/-. Till the year 2005-06, the Register was signed by the previous President of Peraiyur Panchayat. The signature of Sadhan Prabhakar, son of the First Respondent herein, is found as the President of Peraiyur Panchayat from 2006. Admittedly, he was elected and he functioned as President of Peraiyur Panchayat till the election, which is challenged in the O.P concerned in these Civil Revision Petitions came to be conducted.

The contention of the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election O.P. No. 5 of 2011 is that entries could have been made clandestinely by Sadhan Prabhakar son of Soundaravalli, the then President of the Panchayat, as he had retained the Register even after the election was over. No doubt, the said contention may have some substance in it, provided if it came from the said Sadhan Prabhakar, son of Soundaravalli, the past President. On the other hand, the Registers had been submitted to the Commissioner of Kamuthi Panchayat Union and the Commissioner has attested the copies to be true copies. The attesting endorsements state that the copies were taken from the documents found in the file available in the office of the Commissioner, Kamuthi Panchayat Union. Furthermore, if at all the name of the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012 is found only in the entries signed by Sadhan Prabhakar, the previous president, there may be scope for arguing that he could have done it benami in the name of others or he could have created the entries for the purpose of defeating the election of Velmurugan, the Revision Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012. On the other hand, there are entries pertaining to the years 2003-2004 & 2004-2005, which period was prior to Sadhan Prabhakar''s taking charge as President of the Panchayat, and such entries were made and signed by one M.V. Sakthivel, who was the President prior to the election of Sadhan Prabhakar. In fact his signatures are found in the entries for the year 2006. There is no explanation forthcoming from the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012, namely Velmurugan for the entries in the Register of Contractors for Peraiyur Panchayat for the years prior to the date on which the son of the Petitioner in the Election OP became the President of the said Panchayat.

An attempt was made by Velmurugan, petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012, to contend that up to 2004-2005 he was a registered Contractor and he was doing contract works and that thereafter, he did not renew his registration as Contractor and he did not take any contract work from the said Panchayat. Such a contention is far fetched and the same cannot be accepted in the light of the fact that the Register maintained in the usual course of official business contains his name as Contractor under the Panchayat for the year up to 2010-2011. The election to the Office of the President, Peraiyur Panchayat was held on 19.10.2011. At that point of time, Velmurugan did have a subsisting contract. The documents referred to above show that the work of laying concrete road in two of the villages in the Panchayat to the value of Rs. 3,00,000/- was taken on contract by the Petitioner in C.R.P. No. 1474/2012 and that the work was incomplete and hence, the bill was not settled. The same is also supported by the copies of the Letters sent by Velmurugan to the Block Development Officer (Panchayats), Kamuthi to the effect that the work had been entrusted to one Velmurugan and that the work had not been completed and hence the bill had not been settled. He himself, in his own handwriting, has written another Letter stating that the said Velmurugan, who was assigned the contract, was not registered as a Contractor for the Panchayat for the year 2011-2012. It shows that there was conscious omission to refer to the relevant period 2010-2011 and reference to 2011-2012 alone was referred to, as the period during which his name was not found registered as a Contractor under the Panchayat. In 2011-2012, he had been elected as the Panchayat President. Therefore he omitted his name to be included and there is no wonder in the absence of his name in the Register of Contractors of the Panchayat for the said year.

Sufficient oral and documentary evidence, which stand unassailable, have been adduced on the side of the First Respondent/Election Petitioner, which was supported by the official Respondent, namely 6th Respondent and the official witness examined as RW4, to show that from 2003-2004 up to the end of and inclusive of the year 2010-2011, Velmurugan''s name was found in the Register of Contractors and he had been taking contract works from Peraiyur Panchayat. It is also obvious from the inter-departmental communication marked as Ex. P18. Ex. P18 is the Letter sent by the Block Development Officer (Panchayats), Kamuthi to the Assistant Director (Panchayats), Ramanathapuram on 3.12.2001 informing the Assistant Director that the contract for the work of laying concrete roads from out of the discretionary fund of the District Collector to a value of Rs. 3,00,000/- had been assigned to Velmurugan, the then President of Peraiyur Panchayat. The said document is a clinching one showing that the contract had been assigned to the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012. There is no evidence to show that there was any other Velmurugan with the initial ''G''. If at all there was any other person in the same name with same initial, he could have been summoned and examined to prove his contention, but it was not done. The Letters of Velmurugan, copies of which are enclosed in Ex. P5, show that he himself was the Contractor and he had simply omitted to state that the said Contractor was none other than himself. Moreover, the other documents produced by the Election Petitioner, especially the Letter of Block Development Officer dated 3.12.2011 addressed to the Assistant Director (Panchayats), Ramanathapuram marked as Ex. P18 makes it abundantly clear that it was G. Velmurugan, the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012 who got the contract work.

It is an admitted fact and it is not in dispute that the said work assigned to the Contractor by name Velmurugan had not been completed and the final bill for the said work had not been settled as on the date of Notification of election and as on the date of filing nomination papers and also as on the date of election. The foregoing discussions will make it clear that the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in Election OP, namely G. Velmurugan, did have a subsisting contract with the Peraiyur Panchayat and without disclosing the same, he contested the election for the post of the President of the said Panchayat.

As against such clinching evidence, the documents produced on the side of the Petitioner in C.R.P. (NPD) No. 1474/2012/First Respondent in the Election OP are insufficient to prove his contention that he was not the Contractor, who was awarded the above said contract work. The First Respondent in the Election OP has chosen to produce Xerox copies relating to the contract works given to one Gangaram as Exs. R1 to R3. They relate to the contract works given to the said Gangaram for laying water supply pipelines in Keelavalasai and Mettupatti and for laying concrete road leading to the community hall () at Mettupatti. All the publications inviting tenders for the said contract works were made in December 2009 and the contract works were given to the said Gangaram in December 2009. Indian Overseas Bank Pass-book of Gangaram relating to his account bearing A/c No. SB 15193 in Kamuthi branch has been produced as Ex. R4. Similar Pass-book relating to his account with Pandian Grama Bank bearing A/c No. SB 5515 has been produced as Ex. R5. Those documents relate to the other works given on contract to the said Gangaram. The said Gangaram has been examined as RW2. He confirms having got the above said works on contract from Peraiyur Panchayat. Apart from that, he has not stated that the works of laying concrete road in Keelavalasai and Ariyanachipuram was given either to him or to any person other than Velmurugan. Hence the said evidence of RW2 shall not in any way help Velmurugan, the First Respondent in the Election OP to show that he did not take the said contract work from the Panchayat. In fact, his evidence goes contra to that of Velmurugan, who deposed as RW1 to the effect that certain contract works were done by the then Panchayat President, namely the son of the Election Petitioner with the help of one Sankar Ganesh and yet another Velmurugan. The evidence of RW2 shows that none of the works given to him on contract was allowed to be done by any other person on his behalf.

Mr. T.R. Sathyamurthy, Block Development Officer, who deposed as RW4, has made it clear that the First Respondent in the Election OP took many works in Peraiyur Panchayat and Kamuthi Panchayat Union on contract; that the contract work referred to in the proceedings of the District Collector in Na.Ka. No. A2/1967/2010 dated 19.8.2010 was taken by the First Respondent in the Election OP, namely Velmurugan, by submitting tender through Peraiyur Panchayat; that for getting the tender schedule he paid a sum of Rs. 264/- under Receipt No. 5647 dated 3.3.2011. In the chief-examination he has stated that Velmurugan was a registered Contractor under the Kamuthi Panchayat union for the year 2004-2005 and that thereafter his registration was not renewed by him. But, during cross-examination, he admitted that he had no knowledge about the functioning of the First Respondent in the Election OP as a Contractor under Peraiyur Panchayat and that he did not verify the records to ascertain whether he was a Contractor under the Peraiyur Panchayat. Ex. R10 is the copy of the proceedings of the District Collector, Ramanathapuram dated 19.8.2010 referred to above. Administrative sanction was granted and Rs. 3,00,000/- was allotted for creating basic infrastructure for: (1) 60 metres in Amman Koil Street and for 120 meters in North and South streets of Ariyanachipuram and (2) 60 metres in west street and for 60 metres in east street of Keelavalasai (total 300 metres). The President of Peraiyur Panchayat was noted as the Officer through whom the work was to be executed. A copy of the same was also marked to the Block Development Officer (Panchayats), Kamuthi. From the documents discussed above, it is clear that, as contended by the First Respondent herein/Petitioner in the Election OP, the work of laying concrete road in totally five streets in Ariyanachipuram and Keelavalasai villages, estimated at a cost of Rs. 3,00,000/-, was assigned to the Petitioner in C.R.P. (NPD)(MD) No. 1474/2012/First Respondent in the Election OP, namely Velmurugan. The same corroborates the evidence of P.W. 1 and also Ex. P18, the inter-departmental communication from the Block Development Officer (Panchayats), Kamuthi to the Assistant Director (Panchayats), Ramanathapuram which is to the effect that the work of laying concrete road in those streets to a total length of 300 metres had been taken by G. Velmurugan, the Petitioner in C.R.P. (NPD)(MD) No. 1474/2012/First Respondent in the Election OP and that he had then been elected as the President of the said Panchayat in the election concerned in the Election OP.

Considering the above said documents and other evidence adduced on both sides, the Election Tribunal (learned Principal District Judge) has arrived at a correct conclusion that the Petitioner in C.R.P. No. 1474/2012/First Respondent in the Election OP, namely Velmurugan was the Contractor, who took the work of laying concrete road in totally five streets in Keezhavalasai and Ariyanachipuram villages. It is also not in dispute that till the date of filing of the nomination on the date of election, the said work had not been completed and the bill for the same was not settled. As such, the finding of the Election Tribunal that the Petitioner in C.R.P. (NPD)(MD) No. 1474/2012/First Respondent in the Election OP, namely Velmurugan, had an interest in a subsisting contract with the Peraiyur Panchayat at the time of his contesting the election for the post of President of the said Panchayat and that hence he was disqualified under Section 37(3)(c) of Tamil Nadu Panchayats Act, 1994 from contesting the said election, cannot be termed either defective or infirm warranting any interference by this Court in exercise of its power under Article 227 of the Constitution of India.

The election of the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election OP (returning candidate, namely G. Velmurugan) was challenged on the above said ground alone. Even though nothing was stated in the Election Petition regarding the disqualification of the Returned Candidate on the premise that he had suppressed the fact of pendency of a Criminal case, the Election Petitioner had been allowed to lead evidence regarding the same and she was also permitted to produce Ex. P12-certified copy of the First Information Report in Crime No. 37/2008 registered on the file of Peraiyur Police Station against the Returned Candidate, Velmurugan. Though the Election Tribunal (learned Principal District Judge, Ramanathapuram) improperly allowed such evidence to be adduced without a pleading, the said document came to be admitted by the Revision Petitioner in C.R.P. (NPD)(MD) No. 1474/2012/First Respondent in the Election OP during his cross-examination and the same was the reason why it was admitted. However, the Election Tribunal (learned Principal District Judge), after traversing the contents of the Complaint and the fact that none of the offences mentioned therein was punishable with a sentence of imprisonment for more than two years, observed that the pendency of the said Criminal case on the file of the District Munsif cum Judicial Magistrate, Kamuthi as STC No. 454/2009 need not have been disclosed in Affidavit/declaration submitted by the First Respondent in the Election OP and that hence his nomination was not liable to be rejected on the ground of non-furnishing of the particulars of the pendency of the said case. The Election Tribunal (learned Principal District Judge) after arriving at a conclusion that the above said Criminal case was pending against the Returned Candidate and the same was not revealed by him in his Affidavit of declaration submitted along with nomination, as rightly contended on behalf of the First Respondent/Election Petitioner, has committed an error in holding that the same was not in violation of the instructions issued by the State Election Commission in its Notification dated 11.9.2011.

In this regard, the attention of the Court is drawn to the direction issued by the Hon''ble Supreme Court in its judgment in Union of India (UOI) Vs. Association for Democratic Reforms and Another, , pronounced in C.A. No. 7178 of 2001 on 2.5.2012 based on which, instructions were issued in the Election Notification dated 11.9.2011 by the Tamil Nadu State Election Commission. The relevant parts of the instructions are extracted here under:

"5. And Whereas, the Hon''ble Supreme Court, by its aforesaid Order dated 2nd May 2002, has directed as follows and the same is reiterated in the Judgment dated 13th March 2003:

The Election Commission is directed to call for information on Affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his Nomination Paper, furnishing therein, information on the following aspects in relation to his/her candidature:

"(1) Whether the candidate is convicted/acquitted/discharged of any Criminal offence in the past; if, any, whether he is punished with imprisonment or fine?

(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law, if so, the details thereof.

(3) The assets (immovable, movable, bank balances, etc.) of a candidate and of his/her spouse and that of dependents.

(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.

(5) The educational qualifications of the candidate"

and whereas, for implementation of the above-mentioned Order of the Supreme Court dated 2nd May 2002 the Election Commission of India has issued an Order No. 3/ER/2002/JS-II/Vol. III, dated 28th June 2002 and the revised Order No. 3/ER/2003/JS-II, dated 27.3.2003 issued on the subsequent Judgment dated 13.5.2003 for conduct of elections to the Parliament and State Legislatures. Even though, Supreme Court''s order is regarding elections to the Parliament and State Legislatures, the same action is necessary in regard to election to the Panchayats and Municipalities in the State. It is also essential that electors of the local self-governing institution should have knowledge about the Criminal background of a candidate, if any, assets possessed by a candidate, his or her spouse and dependent relation. So also, information about the facts giving insight to the candidate''s capability, capacity and suitability for serving as a member of the local self-governing institution including his educational qualification, etc.

And Whereas, in the absence of such provisions in the laws governing election to the Panchayats and Municipalities, the State Election Commission is duty bound to issue such instructions in the interest of purity of elections to the Panchayats and Municipalities till 5 such amendments are made by the State Legislature in the laws governing election to the Panchayats and Municipalities and since Article 324 is identical to Articles 243K & 243ZA of the Constitution governing the elections to the Panchayats and Municipalities. Almost all the State Election Commissions except a few have already implemented the aforementioned Orders of the Hon''ble Supreme Court of India while conducting the elections to rural and urban local bodies, viz., the Panchayats and Municipalities being the institutions at the lower rungs of the democracy and stepping stones for bringing up the prospective leaders of the country, it is felt necessary by the Tamil Nadu State Election Commission, to have an in-built mechanism of ensuring purity, openness and transparency in the elections to the institutions at the grassroots level.

ORDER

...................................

"1. Every candidate at the time of filing his/her Nomination Paper for any election or casual election for electing a Member or Members or Chairperson or Chairpersons of any Panchayat or Municipality, shall furnish full and complete information in regard to all the five matters referred in Paragraph 5 of the preamble, in an Affidavit or Declaration, as the case may be, in the format annexed hereto:

Provided that having regard to the difficulties in swearing an Affidavit in a village, a candidate at the election to a Ward Member of Village Panchayat under the Tamil Nadu Panchayats Act, 1994 shall, instead of filing an Affidavit, file before the Returning Officer a declaration in the same format annexed to this order:

The said Affidavit by each candidate shall be duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State or before an officer competent for swearing an Affidavit. The Affidavit shall be prepared in a twenty Rupees (120/-) Non-judicial stamped paper.

Non-furnishing of the Affidavit or declaration, as the case may be, by any candidate shall be considered to be violation of this order and the nomination of the candidate concerned shall be liable for rejection by the Returning Officer at the time of scrutiny of nomination for such non-furnishing of the Affidavit/declaration, as the case may be.

If more than one nomination has been filed by a candidate for an election the Affidavit shall be fixed along with the first nomination and no need to furnish the Affidavit with the other nomination papers.

The information so furnished by each candidate in the aforesaid Affidavit or declaration as the case may be, shall be disseminated by the respective Returning Officers by displaying a copy of the Affidavit on the notice board of his office and also by making the copies thereof available to all other candidates on demand and to the representatives of the print and electronic media.

If any rival candidate furnished information to the contrary, by means of a duly sworn Affidavit, then such Affidavit of the rival candidate shall also be disseminated along with the Affidavit of the candidate concerned in the manner directed above.

All the Returning Officers shall ensure that the copies of the Affidavit/declaration, prescribed herein by the Tamil Nadu State Election Commission in the Annexure shall be delivered to the candidates along with the forms of nomination papers as part of the Nomination Papers.

In view of the penal provisions contained in Section 177 of Indian Penal Code (Procedure contemplated in Section 195 of Code of Criminal procedure) The Returning Officer concerned may initiate action after providing reasonable opportunity to the party concerned in case of false information, if any, confirmed at a later date.

This order shall come into force with effect from 11th September 2011."

In interpreting and applying the above said order, the learned Principal District Judge (Election Tribunal) has chosen to make an incorrect and perverse observation that it was not necessary for the Revision Petitioner in C.R.P. (NPD)(MD) No. 1474/2012/First Respondent in the Election OP to state the pendency of the Criminal case in S.T.C. No. 454/2009 on the file of District Munsif cum Judicial Magistrate, Kamuthi, in the Affidavit/declaration prescribed by the Tamil Nadu Election Commission, since none of the offences alleged therein was punishable with imprisonment for more than two years. The said observation at the outset is perverse. The Hon''ble Supreme Court in its Order dated 2.5.2002 issued a direction to the Election Commission to call for information on Affidavit by issuing necessary orders in exercise of its power from each candidate seeking election to the Parliament or State Legislature as a necessary part of his Nomination Paper, furnishing therein information on the following aspects in relation to his/her candidature:

"(1) Whether the candidate is convicted/acquitted/discharged or any Criminal offence in the past, if any, whether he is punished with imprisonment or fine?

(2) Prior to six months of filing nomination, whether the candidate is Accused in any pending case of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law, if so, the details thereof.

(3) The assets (immovable, movable, bank balances, etc.) of a candidate and of his/her spouse and that of dependents.

(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.

(5) The educational qualifications of the candidate."

Though the said direction came to be issued in connection with the election to Parliament or State Legislature, the very same principle will apply to the election to the local bodies. Even if the same cannot be taken as a direction of the Supreme Court in respect of the election to local bodies, the said Judgment itself makes it clear that the Election Commission shall have such power to issue such directions and instructions seeking such informations form the candidates. The State Election Commission has issued such a mandatory instruction. As such, the failure to furnish the said particulars in the Affidavit/declaration or furnishing of a wrong particular regarding the said aspect, shall constitute a ground for challenging the election of the said candidate as invalid and void.

The instructions issued by the State Election Commission made it mandatory for the candidate to mention in his Affidavit/declaration the Criminal case pending against him, in which charge has been framed or cognizance has been taken by a Court of Law, provided any one of the offences alleged therein is punishable with imprisonment for two years or more. It has been unambiguously stated in the instructions that cases involving offences punishable with two years or more should be mentioned in the Affidavit/declaration. It does not state that cases involving offences punishable with more than two years should be mentioned. The Election Tribunal (learned Principal District Judge) gave a wrong interpretation to the above said direction as if the requirement was to furnish information regarding cases involving offences punishable with imprisonment for more than two years. The said observation is against the letter and spirit of the direction. Any one can clearly understand the meaning of the said direction to mean that particulars of the cases in which the candidate has been indicted for offences punishable with imprisonment for two years should be furnished and it is incorrect to understand that the cases involving offences punishable with imprisonment for more than two years alone need be stated in the Affidavit/declaration.

In this regard, the evidence of Velmurugan, the Revision Petitioner in C.R.P. (MD) No. 1474/2012/First Respondent in the Election OP (Returned Candidate) assumes importance. During cross examination he admitted that in the Affidavit/declaration at page 3 of the Nomination Papers he had stated that no Criminal case was pending against him. However, when confronted with a suggestion that a Criminal case in S.T.C. No. 454/2009 was pending against him on the file of the District Munsif cum Judicial Magistrate, Kamuthi he admitted the same. He admitted the same when confronted with the certified copy of the First Information Report. On his admission of the same, Ex. P12 came to be marked. Velu son of Gandhi Nadar, Mettupatti and Muthukrishnan son of Pal Pandi Nadar, Mettupatti are the two persons Accused in the said case. Though his full name as Velmurugan is not found in the First Information Report and his short name ''Velu'' is found in the FIR, the Returned Candidate Velmurugan clearly admitted in his evidence that it was he who was indicted in the said case and that the case was pending on the file of the District Munsif cum Judicial Magistrate, Kamuthi as STC No. 454 of 2009 even on the date of his examination as RW1. It is obvious from Ex. P12 that after completion of investigation, a Final Report was submitted on the file of the Court of District Munsif cum Judicial Magistrate, Kamuthi and the same was taken on file as STC No. 454/2009. The numbering of the case as STC No. 454/2009 will make it clear that the Court has taken cognizance of the offences. The offences alleged therein are punishable with the following sentences:

"Section 294(b), I.P.C. : punishable with imprisonment upto three months or with fine or with both;

Section 448, I.P.C. : punishable with imprisonment upto one year or with fine upto 1000 rupees or with both; And

Section 506(i), I.P.C. : imprisonment upto 2 years or with fine or with both.

It should also be noted that if the threat is to cause death or grievous injury, the offence will be covered by part two of Section 506, I.P.C. in such cases, the punishment shall be up to seven years imprisonment or with fine or with both. Though there are allegations in the Complaint that the threat was to cause death, the Criminal Court chose to take cognizance of the offences under Sections 294(b), 448 & 506 (First Part) of IPC. The offence under Section 506 (Part I) of IPC is punishable with imprisonment of either description for term which may extend to two years, or with fine, or with both. The said offence comes well within the second direction of the Hon''ble Supreme Court, even though the other two offences are punishable with lesser punishment. The Election Tribunal (learned Principal District Judge) erroneously held that the particulars of the said Criminal case need not have been furnished by the First Respondent in the Election OP, as it was not punishable with more than two years imprisonment. The failure to furnish and suppression of the material information regarding his indictment in a Criminal case involving an offence punishable with imprisonment for two years, should have led to the rejection of the nomination of the First Respondent in the Election OP. The same shall be in addition to his having incurred disqualification under Section 37(3)(c) of the Tamil Nadu Panchayats Act, 1994 to be a candidate for the election to the post of President of Peraiyur Panchayat, as he had a subsisting contract with the said Panchayat at the time of his election, on the basis of which his nomination papers were liable to be rejected.

The election of the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election OP is liable to be declared void on both the grounds discussed above. Though the Election Tribunal (learned Principal District Judge) committed an error in holding the suppression of the fact relating to the pendency of the Criminal case would not have resulted in either disqualification or the rejection of his nomination paper, it has correctly held that the election of the Returned Candidate Velmurugan (Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election OP) was liable to be set aside declaring his election to be void and invalid on the ground that he had incurred disqualification from contesting the election for the post of President of Peraiyur Panchayat as he did have a subsisting contract with the Panchayat on the date of his nomination as per Section 37(3)(c) of the Tamil Nadu Panchayats Act, 1994.

For all the reasons stated above, this Court comes to the conclusion that the finding of the Election Tribunal (Principal District Judge, Ramanathapuram) holding the election of G. Velmurugan to be void and invalid is bound to be confirmed not only for the reason assigned by the Election Tribunal, but also for the additional reason found by this Court as stated supra.

After holding the Returned Candidate to be disqualified from contesting the election and declaring his election to be void, the Election Tribunal (learned Principal District Judge), proceeded further to hold that the Second Respondent in the Election OP (Petitioner in C.R.P. (NPD)(MD) No. 1853/2012), by name Sathiaselvan, was also not eligible to contest the election for the post of President of Peraiyur Panchayat, as his name did not find a place in the Voters List of the said Panchayat. As against the said finding holding him not eligible to contest the election for the post of President of Peraiyur Panchayat, the Second Respondent in the Election OP has filed C.R.P. (NPD)(MD) No. 1853/2012. In support of her contention that Sathiaselvan also was not eligible to contest the election for the post of President, Peraiyur Panchayat, the First Respondent/Petitioner in the Election OP, has produced the Voters List pertaining to Peraiyur Panchayat as Ex. P6. Of course it is true and it is also admitted that the published Voters List did not contain the name of Sathiaselvan, the Petitioner in C.R.P. (NPD)(MD) No. 1853/2012/Second Respondent in the Election OP. It is also his admission that though they were the natives of Peraiyur Panchayat, due to the employment of his father, their family had migrated to Madurai. However, he has stated that though they had migrated to Madurai due to the employment of his father, they were visiting the native place on auspicious occasions and that of late, he himself renovated the ancestral house in Peraiyur and he had got his Family Card transferred from Madurai Circle (Civil Supplies) to Peraiyur village, Kamuthi Taluk, Ramanathapuram District under Sl. No. 672/2010. He has also produced the Family Card as Ex. R7 showing his residential address to be door No. 2/550-9, Peraiyur village. On such transfer, it was registered in the office of Kamuthi Taluk Supply Officer, which is found with the endorsement dated 25.8.2011. The Ration Shop number has also been noted as GP024 at Peraiyur. In addition, he has produced Ex. R6 as the House Tax Receipt issued on 26.3.2012 for the said house. The same will not be helpful to show that he was a resident of Peraiyur village and he was a voter in the Peraiyur Panchayat as on the date of Notification of election or on the date of his nomination. Though his name was not found in the printed Voters List, he had obtained an order from the Revenue Divisional Officer, Paramakudi in her proceedings Na.Ka. No. B2/4058/2011 directing inclusion of his name in Part 47 in the Voters List of Mudhukulathur Legislative Assembly Constituency with Sl. No. 657. Copy of the Voter''s ID produced as Ex. R9 shows that he was given the Voter''s ID only on 30.12.2011. Certified True copy issued by the Revenue Divisional Officer, Paramakudi on 28.9.2011 for inclusion of the name of the Second Respondent in the Election OP, namely Sathiaselvan, in Mudhukulathur Legislative Assembly Constituency with Sl. No. 657 in Part 47 has been produced as Ex. R8. The Revenue Divisional Officer happened to be the Electoral Registration Officer of Mudhukulathur Legislative Assembly Constituency. The Family Card and the Electoral Registration Officer''s certificate produced as Ex. R7 & R8 respectively, show that as on the date of election he was a resident of Peraiyur village and his name was directed to be included in the Mudhukulathur Assembly Constituency. Based on the order of the Electoral Registration Officer cum Revenue Divisional Officer, the Second Respondent seems to have contested the election for the post of President of Peraiyur Panchayat. The First Respondent herein/Election Petitioner has produced a copy of the Voters List for the Local Body Election-2011 to Madurai Corporation Ward No. 27. In the said list in Sl. No. 621, Sathiaselvan''s name is found along with his photograph. However, the said Voters List had been prepared prior to the declaration of election to the local bodies in 2011. On 28.9.2011, the Electoral Registration Officer of Mudhukulathur Assembly Constituency has issued the Certificate directing inclusion of his name in Part 47 with Sl. No. 664. The age of the 2nd Respondent was also noted as 41. The said Order came to be passed after getting Form 6/8A which is for registration of a voter''s name with change of address, causing a consequential deletion of his name from the Voters List relating to his former address. The omission to delete his name in the former Voters List was not due to any mistake on his part and the same cannot be projected as a disqualification for the petitioner in C.R.P. (NPD) No. 1853 of 2012/the Second Respondent in the Election OP, namely Sathiaselvan, from contesting the election. The Rules permit such person to get an order from the Electoral Registration Officer for including his name in the Voters List of the particular Assembly constituency within which the Panchayat comes.

The Petitioner in C.R.P. (NPD)(MD) No. 1853 of 2012/the Second Respondent in the Election OP in his evidence as RW2 has made it clear that before the election (in August 2011 itself), he got his Family Card changed from Madurai North Circle to Peraiyur in Kamuthi Taluk, Ramanathapuram District and his Family Card was changed to his Peraiyur address and with Ration Shop No. GP024 at Peraiyur in August 2011 itself by the Taluk Supply Officer, Kamuthi and the same was registered in the said shop. The said particulars are found in Ex. R7-Xerox copy of the Family Card of the Second Respondent. No doubt the House Tax Receipt is dated subsequent to the date of local body election and the Voter''s ID Card was also issued subsequent to the date of election as evidenced by Ex. R6 & Ex. R9. That alone will not be enough to draw an inference that his name could have been included in the Assembly constituency of Mudhukulathur.

But, after getting his Family Card transferred to Peraiyur address, the Petitioner in C.R.P. (NPD)(MD) No. 1853/2012/Second Respondent in the Election OP, applied before the Electoral Registration Officer (RDO, Paramakudi), Mudhukulathur Legislative Assembly Constituency and got his name included in the said Legislative Assembly Constituency by an Order dated 28.9.2011. A certified copy of the order has been produced as Ex. R8. From the said document, which is corroborated by the evidence of RW3 & RW4, the Petitioner in C.R.P. (NPD)(MD) No. 1853/2012 has proved that his name was directed to be included by the Electoral Registration Officer of Mudhukulathur constituency on 28.9.2011 itself with Sl. No. 657 in Part 47 of the Voters List of the said Assembly Constituency consisting of Peraiyur Panchayat. Of course the said inclusion directed by the Electoral Registration Officer of Mudhukulathur Assembly Constituency was not reflected in the printed Voters List published on 19.9.2011 marked as Ex. P6. It is pertinent to note that the correction in the Electoral Roll by addition of the name of the Second Respondent was directed only after the publication of the printed Voters List. Therefore, the fact that the Second Respondent''s name is not found in Ex. P6 is of no consequence, because his name was directed to be included subsequent to the publication of the said printed Voters List. The First Respondent in the Civil Revision Petitions/Petitioner in the Election OP chose to rely on Ex. P14-Part 47 of the Voters List with Annexures published on 24.10.2011 relating to Peraiyur Panchayat in Mudhukulathur Legislative Assembly constituency and contend that though Sathiaselvan claimed to have obtained an Order for the inclusion of his name in Part 47 of the Voters List of Mudhukulathur Assembly Constituency with Sl. No. 657, as per Ex. P14 one Murugeswari''s name was found in Sl. No. 657 and that hence, no reliance could be made on Ex. R8. Ex. P14 came to be issued on 24.10.2011.

It is pertinent to note that Ex. P14 contained only three Supplementary Lists. The Fourth Supplementary List came to be issued on 5.1.2012. The same has been marked as Ex. P15. In Ex. P15, Sathiaselvan''s name is included in Sl. No. 664. Taking advantage of the fact that the name of Sathiaselvan was not found in Ex. P14 and it was found only in Ex. P15 issued on 5.1.2012 (subsequent to the election concerned in the CRPs), Soundaravalli, the Petitioner in the Election OP chose to contend that he was not a voter in Peraiyur Panchayat on the date of his nomination and his name was included as a voter in the Panchayat only subsequent to the election held in October 2011 and that therefore, Sathiaselvan''s nomination ought to have been rejected. The evidence adduced, both oral and documentary, on the side of the Respondents in the Election OP will show that the name of Sathiaselvan was included in the Supplementary List No. 4 pursuant to the order of the Electoral Registration Officer of Mudhukulathur Assembly constituency issued in the proceedings of the said Officer in Na.Ka. No. B2/4058/2011 dated 28.9.2011, a certified copy of which has been produced as Ex. R8.

From the said documents and evidence, it is quite obvious that the name of Sathiaselvan was directed to be included in Part 47 of the Voters List of Mudhukulathur Assembly constituency on 28.9.2011 itself. It is also obvious from the records produced by the parties and also the evidence adduced through the witnesses that Sathiaselvan, the Second Respondent in the Election OP, wanted to record his change of address and submitted the necessary Application for the inclusion of his name in Mudhukulathur Assembly Constituency and also Peraiyur Panchayat. In order to enable him to contest the local body election from Peraiyur Panchayat, he wanted the said correction in the Voters List. The Electoral Registration Officer also passed necessary Orders for the inclusion of his name in the Voters List of Mudhukulathur Assembly Constituency in Part 47 which comprises Peraiyur Panchayat. Ex. R8 itself makes it clear that such a Certificate was issued for the purpose of enabling him to contest as a candidate for the local body election, which was scheduled to be conducted during October 2011. In this regard, RW4 has made a clear assertion in his evidence that a person, whose name is not found in the published Voters List, could contest the election, if such a Certificate of the Electoral Registration Officer is obtained and produced. It was his further assertion that Tamil Nadu State Election Commission had issued clear instructions to accept the nominations of persons, who would obtain such a certificate from the Electoral Registration Officer (RDO) and to allow them to cast their votes. Such a clear and unambiguous assertion made by the Block Development Officer of Kamuthi Taluk, as RW4, has not been challenged to be incorrect by cross-examining him with necessary suggestion to the contrary. In Ex. R8 itself, the Electoral Registration Officer has made it clear that the serial number assigned to Sathiaselvan in the said Order was subject to change while preparing the Supplementary List. The Election Tribunal (learned Principal District Judge, Ramanathapuram), without considering the above aspects in proper perspective, simply accepted the contention of the First Respondent in the Civil Revision Petitions/Petitioner in the Election OP that Sathiaselvan was not eligible to contest the election for the post of President of Peraiyur Panchayat, as his name did not find a place in the published Voters List. The Election Tribunal also failed to notice the fact that such a Certificate was issued by the Electoral Registration Officer with the specific recital that the same was issued to enable the Second Respondent in the Election OP to contest the local body election scheduled to be conducted in 2011. The Election Tribunal also failed to consider the fact that RW4 has also spoken about the acceptability of such a document with a specific statement that the State Election Commission has issued directions not to reject the nomination of candidates who got such a Certificate from the Electoral Registration Officer and not to refuse them right of vote on the sole ground that his/her name is not found in the published Voters List. The failure to consider the said aspect has led to an erroneous finding being rendered by the Election Tribunal (learned Principal District Judge, Ramanathapuram) to the effect that the Second Respondent Sathiaselvan was not a voter in Peraiyur Panchayat in which he contested the election for the post of President and that his nomination was improperly accepted by the Returning officer. The said finding of the Election Tribunal is erroneous and the same deserves to be reversed. Accordingly, this Court holds that the above said finding of the Tribunal regarding the acceptance of the nomination of the Second Respondent Sathiaselvan is erroneous; that the Second Respondent Sathiaselvan was very much competent to contest the election for the post of President of Peraiyur Panchayat on the basis of Ex. R8 and that the acceptance of his nomination by the Returning Officer was proper.

In the foregoing paragraphs, we have seen that the Revision Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election OP, namely the Returned Candidate-G. Velmurugan was disqualified from contesting the election to the post of President, Peraiyur Panchayat under Section 37(3)(c) of the Tamil Nadu Panchayats Act, 1994 as he was having an interest in a subsisting contract with the Panchayat. In this regard, the Election Tribunal rendered a correct finding, which deserves to be confirmed. So far as the other ground of challenge to his election is concerned, the Election Tribunal has rendered an erroneous finding that the cases pending against a contestant in the election need be mentioned in the Affidavit of declaration only if such Criminal cases involve offences punishable with imprisonment for more than two years, whereas the instructions issued by the State Election Commission based on the direction of the Hon''ble Supreme Court in Union of India (UOI) Vs. Association for Democratic Reforms and Another, , pronounced on 2.5.2012 in C.A. No. 7178 of 2001, was to the effect that all Criminal cases against the contestant involving offences punishable with imprisonment for two years or more should be revealed in the Affidavit of declaration and such a condition was made mandatory. It is obvious from Ex. P12-First Information Report that a case was registered against the Returned Candidate for offences under Sections 294(b), 448 & 506(i), I.P.C., in Crime No. 37/2008 on the file of Peraiyur Police Station and in the said case, after investigation, a Final Report was submitted alleging commission of the above said offences and that the same was taken on file by the learned District Munsif cum Judicial Magistrate, Kamuthi as STC No. 454/2009. He had suppressed the fact that he was Accused of Criminal offences, one of which was punishable with an imprisonment up to two years and the said suppression also should have been a ground for rejection of his nomination. The Election Tribunal erroneously held that the failure to mention the pendency of the said case would not invalidate his election or make his nomination liable to be rejected, as none of the offences alleged therein was punishable with imprisonment for more than two years. The said finding of the Election Tribunal is erroneous and the Election Tribunal ought to have held that besides incurring disqualification under Section 37(3)(c) of Tamil Nadu Panchayats Act, 1994, he also made his nomination liable to be rejected, as he had suppressed the fact of pendency of a Criminal case pending against him, in which he had been indicted for an offence punishable with imprisonment up to two years. Therefore, this Court comes to the conclusion that the ultimate finding of the Election Tribunal that the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election OP is disqualified from contesting the election for the post of President of Peraiyur Panchayat is bound to be confirmed. Such a confirmation shall be made not only on the ground of disqualification incurred by him under Section 37(3)(c) of the Tamil Nadu Panchayats Act, 1994, but also on the ground of suppression of the fact of pendency of a Criminal case, in which he had been indicted for an offence punishable with imprisonment up to two years. In view of the said disqualification and the ground for rejection of his nomination, this Court comes to the conclusion that the declaration made by the Election Tribunal that the election of the First Respondent in the Election OP, namely Velmurugan, to the post of President of Peraiyur Panchayat was invalid, has got to be confirmed.

Once the election of the Returned Candidate is declared invalid, the next questions that arise for consideration is:

"(i) whether the candidate, who secured the next highest vote, being the Election Petitioner, should be declared to have won the election?

and

(ii) whether the post of President of Peraiyur Panchayat should be declared to have fallen vacant and holding of a fresh election should be directed?".

In this regard, the First Respondent herein/Election Petitioner, in order to get her position secured, wanted to have the Second Respondent also declared not competent to contest the election for the post of President on the premise that his name was not found in the Voters List of Peraiyur Panchayat. This aspect was dealt with in detail supra and this Court held that his nomination was properly accepted and he was rightly allowed to contest the election and that the finding of the Election Tribunal to the contrary was erroneous. As this Court has found that the highest scorer of votes, namely the Returned Candidate/First Respondent in the Election OP was disqualified from contesting the election for the post of President, if the Election Petitioner alone happened to be the rival contestant, the disqualification of the other contestant would have resulted in a position that there was no contest and the Election Petitioner should have been declared elected unopposed. In such cases, it will be easy for the Court to take a decision to declare the Election Petitioner to have won the election. When there was no straight contest between two rival candidates and there was a multiple contests by a number of candidates, then it will be difficult to hold that the candidate, who secured the second highest votes, who happened to be the Election Petitioner, to have won the election, on the proof of disqualification incurred by the Returned Candidate. It is possible to hold that the majority votes cast in favour of the candidate, who was subsequently found to be disqualified as ''thrown away votes''. At the same time, it can also be construed to be votes against the second highest scorer of the votes, who happened to be the Election Petitioner. In the absence of contest by a disqualified candidate, there is possibility of the said votes being cast in favour of another contestant. When the margin between the other contestant and the Election Petitioner is lean, it shall not be prudent for the Election Tribunal or the Court to hold that the entire votes cast in favour of the Returned Candidate, who was later on proved to be disqualified, should be considered as wasted/invalid votes and declare the Election Petitioner, who scored the second highest votes to have won the election. Suppose the other contestants had secured only meagre votes making them lose the deposit and the margin between the candidates securing the second highest votes and the next (third) highest votes is huge enough, then there may be a justification in declaring the candidate who got the second highest vote to have won the election.

Rule 137 of the Tamil Nadu Panchayats (Election) Rules, 1995 is the relevant rule which deals with such a situation, which reads as follows:

"137. Grounds on which a candidate other than the Returned Candidate may be declared to have been elected.--If any person who has lodged a Petition has, in addition to calling in question the election of the Returned Candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Election Court is of opinion--

(a) that in fact the Petitioner or such other candidate received a majority of the valid votes; or

(b) that but for the votes obtained by the Returned Candidate by corrupt practices, the Petitioner or such other candidate would have obtained a majority of the valid votes,

The Election Court shall, after declaring the election of the Returned Candidate to be void, declare the Petitioner or such other candidate, as the case may be, to have been duly elected."

While interpreting the said Rule, a learned Single Judge of this Court (Mr. Justice V. Ramasubramanian) in V. Sahadevan v. C. Ayyakalai and 9 others, 2008 (5) CTC 1, has observed that the Doctrine of "Thrown Away Votes" could be invoked, if there are only two candidates and if one of the two candidates stands disqualified then the remaining candidate could be declared to have won the election; that if there are more than two candidates in the election and one of them is disqualified, such doctrine cannot be automatically invoked; that it must be established that the voters had the knowledge of disqualification and yet voted in his favour in the manner they did and that the election is not a sports event to accept the runner up as winner, if the winner is disqualified. The learned Single Judge of this Court made the above said observation based on the ratio laid down by a Larger Bench of the Apex Court in Prakash Khandre Vs. Dr. Vijaya Kumar Khandre and Others, . It was held therein as follows:

"1. In an Election Petition under the Representation of the People Act, 1951 (hereinafter referred to as "the Act"), when contest for election to the post of MLA is by more than two candidates for one seat and a candidate, who was disqualified to contest the election, is elected - whether the Court can declare a candidate who has secured next higher votes as elected?

However, in an election where the elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person, who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate, who has secured more votes than the other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the Returned Candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election Petitioner or any other candidate to be declared elected.

24........Some general rule of election law prevailing in the United Kingdom that the votes cast in favour of a person, who is found disqualified for election may be regarded as "thrown away" only if the voters had noticed before the poll the disqualification of the candidate, has no application in our country and has only merit of antiquity. We would observe that the question of sending such notice to all voters appears to us alien to the Act and the Rules. But that question is not required to be dealt with in this matter."

In V. Sahadevan v. C. Ayyakalai and 9 others cited above, the learned Single Judge has also deduced the principles from the Case Laws. They are:

"(a) Where the contest is limited only to two candidates and one of them is found by the Court, in an Election Petition, to have been disqualified on the date of the election, it is permissible for a Court to declare the other candidate as the successful candidate. In such circumstances, the "Doctrine of thrown away votes" can be invoked. This is on account of the fact that if the Returning Officer himself had rejected the nomination of such a candidate on the basis of the disqualification, only one candidate would have been left in the fray. If only one candidate is left in the fray, the election would have been an uncontested election, covered by Section 53(2) of the Representation of the People Act, or Rule 32(1)(a) of the Tamil Nadu Panchayats (Election) Rules, 1995.

(b) But if there are more than two contesting candidates, the mere declaration of the election of the Returned Candidate as void, will not by itself entitle the Election Petitioner or any other candidate to be declared as elected. This is in view of the ratio laid down in quoted with approval in paragraph-22 of Prakash Khandre v. Dr. Vijay Kumar Khandre and others (supra) case.

(c) When there are more than two candidates in the contest and one of them is declared by the Court in an Election Petition as having been disqualified on the date of the election, it does not necessarily follow as a corollary that all the votes cast in favour of the Returned Candidate were "invalid votes" or "thrown away votes." To treat all the votes polled in favour of the Returned Candidate as invalid or thrown away votes, it must be established that the voters had knowledge of such disqualification and yet voted in the manner that they did. Law presumes knowledge on the part of the electors in respect of some types of disqualification. The Courts have assigned the term "notoriety of basic fact" for such types of disqualification. The Division Bench of the Calcutta High Court in Jagadananda Roy Vs. Rabindra Nath Sikdar and Others, , referred to the famous English decision in Beresford-Hope v. Lady Sandhurst, 1889 (23) QB 79, where a woman contested the election though men alone were allowed to contest. The fact that the Returned Candidate was a woman not entitled to contest, is a fact of which the electors were presumed to have had knowledge, since it was obvious. In cases where the disqualification is not so notorious as to raise a presumption of knowledge on the part of the electors, the votes polled in favour of the Returned Candidate, cannot be treated as invalid or thrown away votes.

(d) Where the disqualification of the Returned Candidate is kept suspended by orders of stay or injunction granted by a Court, the votes polled in favour of such a candidate cannot be treated as invalid or thrown away votes. The order of stay of the disqualification granted by the Court, is itself a message sufficient for the electors to presume that such a candidate is entitled to have their votes. Therefore, the question of discarding their votes as invalid post facto would infringe upon the freedom of choice available to the electors in a democratic republic.

(e) Rule 29 of the Tamil Nadu Panchayats (Elections) Rules, 1995 prescribes a detailed procedure for scrutiny of nominations. As per the said Rule, the Returning Officer should take up the scrutiny of nominations on the date and hour already notified, at the place fixed for the purpose. Every candidate is entitled to be present thereat, along with one of his proposers and one other person duly authorised by him. The Returning Officer is obliged to give all reasonable facilities for all candidates to examine the Nomination Papers of all the candidates. If any person objects to any nomination, either orally or in writing, the Returning Officer should examine the Nomination Papers and decide one by one and ward by ward, all objections and may even reject the nomination of any of the candidates. One of the grounds on which the Returning Officer is entitled to reject the nomination of a candidate under Rule 29(3)(a) is the lack of qualification or the disqualification on the part of the candidate. The Proviso to Rule 29(7) empowers the Returning Officer to allow the candidate whose nomination is objected to, sufficient time to rebut the objections. Thereafter the Returning Officer is to give his decision and endorse on each Nomination Paper, as per Rule 29(8), his decision accepting or rejecting the same. If a nomination is rejected, he is obliged to record reasons and to furnish a copy to the candidate concerned. After these formalities are completed, the Returning Officer is obliged under Rule 29(9) to prepare a list of validly nominated candidates in Form 6 and publish a copy thereof at the place notified for receipt of nominations. Interestingly, Rule 29(9) as it originally stood merely spoke about a list in Form 6 containing the list of "nominated candidates." But by an amendment issued in G.O. Ms. No. 282, Rural Development Department, dated 30.10.2000, the word "validly" is inserted along with the words "nominated candidates." Therefore the list published in Form 6 by the Returning Officer, is a list of "validly nominated candidates." Hence when the electors go to poll, on the basis of the list published by the Returning Officer, the electors are entitled to presume that the names found in the list are that of "validly nominated candidates." Consequently, the votes polled by the electors in favour of one of those candidates cannot be so easily treated as "thrown away or invalid votes" except under special circumstances, as the one arising out of "notoriety of basic fact."

(f) Rule 137(a) of the Tamil Nadu Panchayats (Elections) Rules, 1995 (which is in pari materia with Section 101(a) of the Representation of People Act, 1951) enables the Court to declare the Election Petitioner or any other person as duly elected, if the Court is of the opinion that he had received a "majority of the valid votes." The Rule is carefully worded inasmuch as it does not use the phrase "candidate, who secured the next highest number of votes." The legislature has not treated the election as a race or a sporting event, where if the winner is declared disqualified, the runner would automatically get elevated. This is why the Supreme Court took pains to explain in Paragraph-24 of Prakash Khandre v. Dr. Vijay Kumar Khandre and others (supra) case that it is not possible for the Court to predict or guess in whose favour the voters would have voted if they were aware of the disqualification of the elected candidate. The very language of Rule 137(a) or Section 101(a) does not permit of such a guess work.

(g) Even in cases falling under the category of Rule 137(b) of the Tamil Nadu Panchayats (Elections) Rules, 1995, where an election is set aside on the ground of corrupt practices, the Supreme Court did not allow such a guess work as to whether the votes procured by the Returned Candidate by adopting such practices, would have gone the other way about. This is why the observations of Hidayatullah, C.J., in R.M. Seshadri Vs. G. Vasantha Pai, were extracted with approval in Prakash Khandre v. Dr. Vijay Kumar Khandre and others (supra) case."

The said ratio decided therein squarely applies to the case on hand and in this case, as there were six persons in the fray and in addition, the margin between the two defeated candidates, namely the Election Petitioner and the Second Respondent in the Election OP, namely Sathiaselvan is only 35 votes, it is a fit case in which Doctrine of "Thrown Away Votes" should be held to have no application and that hence, the Election Petitioner was not entitled to be declared to have won the election. This Court has made it clear that Sathiaselvan was very much competent to contest the election and the acceptance of his nomination was correct and it could not be fount fault with. In the light of the above said circumstances, this Court comes to the conclusion that it shall not be in the interest of justice to declare the Election Petitioner to have won the election as done by the Election Tribunal. The Election Tribunal has committed a grave error in declaring the Election Petitioner to have won the election. The said decision of the Election Tribunal is liable to be interfered with and set aside. For all the reasons stated above, this court comes to the conclusion that the first part of the Order of the Election Tribunal declaring the election of the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election OP viz. G. Velmurugan to the post of President of Peraiyur Panchayat to be invalid has got to be confirmed and that at the same time, the second part of the Order of the Election Tribunal by which Soundaravalli, the Election Petitioner was declared to have won the election is bound to be set aside, with the result that the post of President of Peraiyur Panchayat should be declared to have fallen vacant and fresh election should be conducted for filling up the same.

In the result, C.R.P. (NPD)(MD) No. 1853/2012 is allowed. C.R.P. (NPD)(MD) No. 1474 of 2012 filed by G. Velmurugan (Returned Candidate) is partly allowed. The first part of the Order of the Election Tribunal dated 9.7.2012 made in Election O.P. No. 5/2011 declaring the election of the Petitioner in C.R.P. (NPD)(MD) No. 1474 of 2012/First Respondent in the Election OP viz. G. Velmurugan to the post of President of Peraiyur Panchayat to be invalid, is confirmed and at the same time, the second part of the Order of the Election Tribunal by which Soundaravalli, the Election Petitioner was declared to have won the election is set aside, with the result that the post of President of Peraiyur Panchayat is declared to have fallen vacant and a fresh election should be conducted for filling up the same. Consequently, the connected Miscellaneous Petitions are closed.