K. Thangavelu Udayar vs V. Ramalingam and Others

S.S. Subramani, J.—Both these revisions are filed under Article 227 of the Constitution of India against the order of the Election Tribunal

which dismissed the Election Petitions. C.R.P.NO.1730 of 1998 arises from Election O.P.No. 12 of 1996, and C.R.P.No. 1761 of 1998 arises

from Election O.P.No. 73 of 1996, on the file of Principal District Judge, Tiruchi. In Election O.P.No. 12 of 1996, petitioner wanted to declare

the election of the 1st respondent therein who was declared elected as Chairman to the Panchayat Union Council of Veppanthattai, as invalid. In

Election O.P.No. 73 of 1996, petitioner therein wanted a declaration that the election of the respondent as member of a ward, is invalid.

In both these election petitions, two grounds are raised, namely, (1) Respondent''s name is not included in the electoral roll in the Ward for

which he filed his nomination and, therefore, the acceptance of his nomination by the Returning Officer was not proper. (2) The second ground is

regarding his election as Chairman. There are 21 Ward Members. The dispute is regarding three ballot papers. A doubt arose regarding two votes

which were counted in favour of first respondent V. Ramalingam. According to the petitioner in Election O.P.No. 12 of 1996, they should have

been counted in his favour, or at any rate, they should not have been counted in favour of the first respondent, and in that way, he ought not to

have been declared as Chairman of the Panchayat.

As against the said contention, first respondent contended that for preparation of the electoral roll for the Panchayat, there is no separate

enumeration. The same is copied only from the electoral roll prepared for the legislative assembly. In the legislative assembly electoral roll, his name

and his father''s name have been correctly furnished. But when the same were copied for panchayat electoral roll, a mistake has been committed in

respect of father''s name. According to him, it is only an error, which he explained to the Returning Officer, and the Returning Officer after

satisfying himself that it is only a mistake and that he is the proper person included in the electoral roll, his name was accepted. He also contended

that he is a permanent resident of the ward, where he filed his nomination, and that he had been representing the Ward on previous occasions also.

In regard to the disputed votes in respect of the election to the post of Chairman, he contended that the votes were rightly considered in his favour,

and no interference is called for. It was further submitted that when there is a doubt as regards the person in whose favour the vote was cast, the

intention of the voter has to be taken into consideration, and if that be so, the Returning Officer has rightly contended the same in his favour. He

prayed for dismissal of the election petitions.

The Election Tribunal took oral and documentary evidence. Exs.A-1 and A-2 were marked on the side of the petitioner, and Exs.B-1 to B-26

were marked on the side of respondent. The respective petitioners got themselves examined as P.W.I and P.W.2, and the respondent examined

himself as R.W.1. The Returning Officer was examined as R. W.2. On evaluating the evidence, the tribunal held that there was an error or

misdescription in the name of the respondent''s father, and taking into consideration the other evidence also, it held that his nomination was rightly

accepted. The tribunal further came to the conclusion that the disputed votes were also rightly counted in favour of the respondent and there is no

ground for interference. It dismissed the election petitions. The correctness of the same is challenged under Article 227 of the Constitution of India

in these civil revision petitions.

Since the revisions are under Article 227, the scope of enquiry is very much limited. Unless the petitioners can substantiate that the order of the

tribunal is perverse, in the sense that no man with some knowledge of law would have entered such a finding, the scope of interference is very

limited.

I will first consider the question as to whether the respondent''s nomination was improperly accepted.

Rules have been framed under the Tamil Nadu Panchayats Act, Part III deals with preparation and publication of Panchayat Electoral Roll. Rule

14 reads thus:

Preparation of Panchayat electoral roll: (1) The electoral roll of a Panchayat, hereinafter referred to as ""the roll"", shall be prepared by reference

to the qualifying date, by the Panchayat Electoral Registration Officer, by integrating the particulars in the various entries available in such part or

partition thereof the current electoral roll of the Tamil Nadu Legislative Assembly and the various amendments issued to it from time to time, as

they relate to the ward of the Village Panchayat or a portion thereof.

(2) The roll shall be divided into convenient parts which shall be numbered consecutively.

(3) There shall be separate part or parts of the rolls for each ward of a Village Panchayat.

(4) The number of electors included in any part of the roll shall not ordinarily exceed one thousand five hundred and in case where it exceeds one

thousand five hundred, it shall be prepared in more than one part in a convenient manner in accordance with the directions issued by the State

Election Commission from time to time.

(5) The roll shall be prepared:

(a) before each ordinary or casual election to fill the vacancy in a ward of a District Panchayat or Panchayat Union, and Village Panchayat or

President of the Village Panchayat.

(b) before such ordinary election to fill the vacancy in the office of the member or members of a ward or of the President of a Village Panchayat.

Provided in special cases, the State Election Commission may direct the preparation of an electoral roll in a Village Panchayat before an election to

fill the casual vacancy either in the office of the member or members of a ward or of the President of the Village Panchayat

Rule 20 deals with publication of copies of rolls. Rule 21 deals with procedure for lodging claims and objections. A reading of Rule 21 makes it

clear that all omissions of names in any part of the roll or objections to any entry in the roll, at any point of time after its publication under Rule 20,

shall be settled by first getting amended suitably the relevant portion of the electoral roll of the Tamil Nadu Legislative Assembly Constituency

based on which the Panchayat roll was prepared. For such purpose, the voter or elector will have to put forward an objection under the provisions

of the Registration of Electors Rules, 1960 to the Electoral Registration Officer of the concerned Legislative Assembly Constituency. After making

the necessary corrections in the Legislative Assembly Constituency Rolls, consequent corrections are made in the Panchayat Electoral Rolls. In

case of any clerical or printing error or both, and when the entries deviate from the particulars of Assembly roll, the Panchayat Electoral

Registration Officer may cause such errors, omissions and commissions rectified so as to bring it in conformity with the particulars of the Assembly

roll concerned. In other words, the Panchayat Electoral Registration Officer will not resort to suo motu revision of the rolls by way of deletions or

additions or modifications. Therefore, it has to be found that the same must be in conformity with the entries in the Legislative Assembly

Constituency Rolls. Even in regard to errors, omissions or commissions, when they had deviated from the assembly rolls, it is not compulsory that it

should be corrected. Rule 28 deals with notice of nomination and the time and place for their scrutiny. Even though much reliance was placed on

Sub-rule (4) of Rule 28 by the respondent, I do not think that the same will have any application to the facts of this case. But it must be noted that

at the time of filing nomination to the Ward, there was no objection raised by any one, and it is the evidence of the respondent that he satisfied the

Returning Officer about the mistake committed while preparing the Panchayat Electoral roll, and to a certain extent there was deviation. The first

respondent, i.e., V. Ramalingam''s father''s name is Velayutham. The same is rightly entered in the Assembly Electoral roll. But when the same was

copied in the panchayat roll, his father''s name was entered as Chinnasami. The other entries, i.e., regarding his mother, his wife, his mother-in-law

all tally with the electoral roll of the Assembly. It has also been admitted by P.W.1 that the first respondent is a permanent resident of the Ward

where he filed the nomination. Taking into consideration these facts, his nomination was accepted and the lower Court also found that there is a

clerical error in the printing of the father''s name and the identify is not in doubt. The tribunal also found that when he is a permanent resident within

the Ward, the entry in the Panchayat Roll only relates to him, when admittedly the name of his wife, mother, mother-in-law, etc., are noted in the

roll. The said finding of the tribunal is clearly on appreciating of fact.

An argument was advanced by learned Counsel for the petitioner that unless the electoral roll is corrected and the names of the petitioner and

his father are rightly mentioned, it must be deemed that the first respondent is not included in the electoral roll. I do not think that such contention

could be accepted. That is why I gave importance to the scope of Rule 21 of the Electoral Rules. It is only obligatory on the part of the Electoral

Officer to correct the deviation from the Assembly Electoral Rolls. Merely because the correction has not been entered, it cannot be said that the

first respondent is not an elector within the Panchayat. I have also held that we have to take note of the electoral roll of the Assembly Constituency,

and, if in that electoral roll, first respondent and his father have been described correctly, then the same will have to be accepted, since the

panchayat is not preparing a separate electoral roll. In this connection, Rule 26 of the Tamil Nadu Panchayats (Elections) Rules is also relevant.

Sub-rule (4) of Rule 26 provides that ''on the presentation of a nomination paper, the Returning Officer shall satisfy himself that the names and

electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll.

There is also a proviso which enables the Returning Officer to permit any misnomer or inaccurate description or clerical or printing error in the

nomination paper in regard to the said names or numbers to be corrected or to bring them in conformity with the corresponding entries in the

electoral roll and wherever necessary, direct that any clerical or printing error in the said entries shall be overlooked. On a reading of Sub-rule (4)

of Rule 26, it is clear that it is for the Returning Officer to satisfy himself about the identity of the person. In this case R.W.2 has also said that the

identity of the person was not in dispute, no one objected when R. W. 1 filed his nomination. I do not think that a serious argument could be taken

on the basis of a misdescription of the father''s name of the respondent so as to invalidate his election. I find that his name is included in the

electoral roll and he filed his nomination properly and the same was also rightly accepted by the Authorities. Therefore, the first ground on which

the election is challenged, is rejected.

Regarding the second ground, I have called for the entire ballot papers, and on perusing the same, I have no doubt that the disputed votes were

cast in favour of the first respondent V. Ramalingam. There is no scope for any doubt. Exs.B-20, B-21 and B-22 are the disputed ballot papers.

On a perusal of the same, I am of the View that the intention of the voter was only to vote for the first respondent. Vide xerox copies enclosed. It

is true that in between the petitioner''s name and the first respondent''s name, there is a black border. A portion of the tick mark has touched the

black border, but a major portion of the tick mark is found only in the column where the first respondent''s name is mentioned. R.W.2, the

Electoral Officer has also said so while he was examined on the basis of Instructions which he obtained from the Election Commissioner. Even if

there is no instruction, a bare perusal of the ballot papers clearly shows that the intention of the voter was to vote only for the first respondent and

to none else. At the time of argument, learned Counsel for petitioner brought before me a specimen ballot paper containing markings in the manner

alleged to be found in the disputed ballot papers. But I find that in the specimen ballot paper, the mark is entirely within the black border, whereas

in the disputed ballot papers, it is not so. In the disputed ballot papers, except for the fact that portion of the tick touches the border, almost the

entire marking is only in the space earmarked for the first respondent. When that is so, the second ground urged by learned Counsel for petitioner

also fails. Consequently, both the revision petitions are dismissed with costs. Advocate fee Rs. 2,500 (two thousand five hundred) in each of the

revisions. The connected C.M.Ps. are also dismissed.