L. Muthuselvi vs The Government of Tamil Nadu and Others

T. Raja, J.—The petitioner/Mr. L. Muthuselvi, W/o. Lakshmanan, has filed the present writ petition, challenging the proceeding issued by

the 6th respondent/P.A. to the District Collector, Dindigul District, dated 30.09.2013 in Na. Ka. No. 4292/2013/A2, to quash the same and for a

consequential direction against the 4th respondent to fill up the casual vacancy in the post of Chairman of Nilakkottai Panchayat Union in

accordance with the statutory procedure prescribed under the Tamil Nadu Panchayats Act, 1994 and Tamil Nadu Panchayats (Elections) Rules,

1995 and allow the petitioner to contest in the election by issuing a nomination form and pass such further or other orders. Mr. N. Dilip Kumar,

learned counsel appearing for the petitioner assailing the impugned notification submitted that Nilakottai Panchayat Union is consisting of 20 Wards

and to fill up all the posts of Ward Members, while so, a General Election was held in the month of October 2011 and finally after the election

process was over, one Mr. Nagarathinam was elected as a Chairman of the said Nilakkottai Panchayat Union. Similarly, Mr. Yagappan/8th

respondent herein was also elected as a Vice-Chairman of Nilakkottai Panchayat Union. Thereafter, all of a sudden, the Chairman Mr.

Nagarathinam died on 09.03.2013 resultantly, the present impugned notification has been issued by the 6th respondent/P.A. to the District

Collector (Nutrition Programme), Dindigul, for electing the Chairman of Nilakkottai Panchayat Union, ignoring three vital statutory conditions.

Firstly, he pleaded, when Rule 8(2) of the Tamil Nadu Panchayat Election Rules, 1995, contemplates State Election Commissioner or the

District Election Officer if so authorized by the State Election Commission in this behalf, shall appoint an officer of the Government not below the

rank of the Assistant Director of Rural Development to be the Returning Officer, unfortunately, without there being any authorization by the State

Election Commission in this context, as per the Rule 8(2) of the Tamil Nadu Panchayat Election Rules, 1995, the present impugned notification has

been wrongly issued.

Secondly, it is also pleaded that as per Rule 24(3)(ii) of the Tamil Nadu Panchayat Election Rules, 1995, for the casual election of members of

the Panchayat Union Councils, notification shall be published in the respective District Gazette, unfortunately, he pleaded, even the said condition

has been completely overlooked.

Thirdly, he pleaded that for conducting the indirect election for the post of Chairman of a panchayat union, the authority should have invoked the

power under Rule 73(1) and (2) of the Tamil Nadu Panchayat Election Rules, 1995. As per the said Rule 73(1) and (2), only the Assistant

Director of Rural Development or any other officer equivalent in remark, nominated by the State Election Commission shall be the Returning

Officer.

Adding further, it was contended that as per rule 73(2) of the Tamil Nadu Panchayat Election Rules, 1995, the Returning Officer shall convene a

meeting of Ward members on such dates as may be, notified by the State Election Commission for the purpose of electing the Chairman,

immediately after the declaration of the results of Election under Rule 67. According to the learned counsel, these two conditions have been

completely violated by invoking the power conferred under Rule 94 of the Tamil Nadu Panchayat Election Rules, 1995, which is meant for only

electing the Vice-President of the Village Panchayat. When all these mandatory conditions have been completely violated, he pleaded, the

impugned notification is liable to be interfered with by this Court, by exercising its inherent powers under Article 226 of the Constitution of India.

In reply Mr. Chellapandian, learned Additional Advocate General appearing for the respondents 1 to 7 submitted that the arguments advanced

by the learned counsel for the petitioner are absolutely untenable, for the reason that when the State Election Commission has issued a detailed

notification on 30.09.2013, directing all the District Collectors and the District Election Officers to make suitable arrangements for holding elections

to fill up the vacancies in the posts of Panchayat Union Chairman and Vice President of the various village panchayats, various instructions have

been given to the District Collectors, including sufficient authority to proceed with the election work, to fill up all the posts mentioned in the

Annexure attached along with the notification issued by the Tamil Nadu State Election Commission on 30.09.2013. When the said notification has

been issued rightly by the State Election Commission fixing the date of indirect election on 09.10.2013 for the posts of Chairman of Panchayat

Union and Vice President of the Village Panchayat, the challenge made by the petitioner that there was no authorization given under Rule 8(2)

indicates only the wrong reading of the said provision by the learned counsel for the petitioner, therefore a complete reading of the impugned

notification dated 30.09.2013 is nothing but only authorization issued to the District Collectors and the District Election Officers for the reason and

the purpose mentioned therein.

In reply to the second submission made by the learned counsel for the petitioner, Mr. Chellapandian learned Additional Advocate General has

pleaded that the direction given under Rule 24(3)(ii) of the Tamil Nadu Panchayat Election Rules, 1995, deals with the notification to be published

in the District Gazette only in a situation where a fresh election is going to be conducted for the post of Chairman and Vice Chairman and other

members of the Panchayat Union, but in the present case, for a casual vacancy in the post of Chairman alone election is going to be conducted, for

which individual notices have already been given to all the ward members, after the death of the erstwhile Chairman Mr. Nagarathinam, who died

on 09.03.2013. Therefore, he pleaded, the argument advanced by the learned counsel for the petitioner that there is a violation of the conditions

adumbrated under Rule 24(3)(ii) of the Tamil Nadu Panchayat Election Rules, 1995, has to be brushed aside as not maintainable.

Thirdly, it was stated that when the notice for the indirect election was issued on 30.09.2013 by the 6th respondent/P.A. to the District

Collector (Nutrition Programme), Dindigul District, the said notice has unambiguously mentioned the name of the post for which, the election is

going to be held. When the said notice has specifically mentioned that the notification is meant for only electing the Chairman of Nilakkottai

Panchayat, the wrong mentioning of Rule 94 of the Tamil Nadu Panchayat Election Rules, 1995, is not going to vitiate the entire proceedings, as

the respondents have made all the arrangements to go for election on 09.10.2013.

In support of his submission, the learned Additional Advocate General has also relied upon a judgment reported in (2000) 8 Supreme Court

Cases 216 in the case of M. Vaikundaraj Vs. State of Tamil Nadu and Others, in the case of M. Vaikundaraj vs. State of Tamil Nadu to say that

the invoking of judicial remedy has to be postponed till the completion of the proceedings, if the challenge to the election is going to have the effect

of protracting the election proceedings. On this basis, he prayed for dismissal of the writ petition, as there is no infirmity.

Mr. R. Narayanan, learned counsel appearing for the 8th respondent while respectfully adopting the arguments advanced by Mr.

Chellapandian learned Additional Advocate General submitted that when the election process had already started to elect the Chairman of

Nilakkottai Panchayat Union, at the eleventh hour, the petitioner has approached this Court, therefore the challenge made in the last minute should

not be entertained, in view of the ratio laid down by the Hon''ble Apex Court in Mohinder Singh Gill and Another Vs. The Chief Election

Commissioner, New Delhi and Others, holding that no Court shall interfere with the middle of the election process once it was initiated.

Heard the learned counsel for the parties and perused the materials available on record.

Nilakkottai Panchayat Union has elected one Mr. Nagarathinam as its Chairman in the General Election held in October 2011. After two

years, unfortunately, the said Chairman passed away on 09.03.2013, as a result, the present notification came to be issued. The question is

whether there shall be any publication of the notification in the District Gazette, as argued by the learned counsel for the petitioner in compliance of

Rule 24(1) & (3)(i)(ii) of Tamil Nadu Panchayat Election Rules, 1995. At this juncture, it is pertinent to extract the above said provision:-

Notification of programme of election.--(1) For the purposes of filling up of ordinary and casual vacancies in the offices of ward members of

panchayats or presidents of village panchayats as the case may be, the State Election Commission, in pursuance of and in consonance with the

constitutional provisions in this behalf, shall in consultation with the Government, by one or more notifications published in the manner prescribed,

call upon the electors of such wards and panchayats to elect ward members of the respective panchayats, and/or presidents of village panchayats,

as the case may be, on such date or dates as may be specified therein.

(3) The notification referred to in sub-rule (1) shall be published--

(i) in the case of both ordinary and casual election of members of District Panchayats, in the Tamil Nadu Government Gazette and in the respective

District Gazettes:

(ii) in the case both ordinary and casual election of members of the Panchayat Union Councils, in the respective District Gazettes.

A close reading of Rule 24(3)(i) & (ii) of Tamil Nadu Panchayat Election Rules, 1995, clearly shows that there shall be a notification published

in the respective District Gazette in the case of both ordinary and casual election of members of the Panchayat Union Councils in the Tamil Nadu

Government Gazette and in the respective District Gazettes. But in the present case, the respondents are not going for fresh election to elect any

Ward Members or Chairman or the Vice Chairman of Nilakkottai Panchayat Union for the first time. When the election took place in the year

2011 for all the 20 wards, ward members were already elected. Subsequently, after the compliance of the conditions mentioned in Rule 24(3)(ii)

Chairman and Vice-Chairman were also elected. Since the said Chairman Mr. Nagarathinam passed away on 09.03.2013 after two years, the

indirect election needs to be conducted by issuing notice to the concerned ward members, accordingly, in the present case, the respondents have

issued individual notices to all the elected ward members informing the date of election and also the place of election for electing the Chairman of

Nilakkottai Panchayat Union, therefore, as contended by the learned counsel for the petitioner, one another notification requires to be published in

the District Gazette as contemplated under Rule 24(3)(ii), is uncalled for, as it is meant for electing the representatives for the first time only.

While coming to the second submission made by the respective counsel, the State Election Commission, while issuing the notification dated

30.09.2013 to the District Collector, Dindigul District, no doubt, has issued various instructions specifically to comply with the date mentioned for

electing the Chairman of the respective Panchayat Unions on 09.10.2013. A close reading of the said notification dated 30.09.2013 issued by the

Tamil Nadu State Election Commission leaves no doubt that authorization has been duly affirmed.

Coming to the third submission that the 6th respondent has wrongly quoted Rule 94 in the impugned notification also is liable to be rejected, for

the reason that the notice dated 30.09.2013, at the very outset, clearly mentions that the election scheduled to be held on 09.10.2013 is only for

the post of Chairman of Nilakkottai Panchayat Union.

Besides, while dealing with the power of the High Court to interfere with the election process, the Hon''ble Apex Court in Election Commission

of India Through Secretary Vs. Ashok Kumar and Others, , delineated that the power of judicial review is a basic structure of the Constitution. Let

me extract paragraphs 15 & 16 of the said judgment as follows:-

The constitutional status of the High Courts and the nature of the jurisdiction exercised by them came up for consideration of this Court in

M.V. Elisabeth and Others Vs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, . It was held

that the High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and supplementary

powers. Unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of Supreme Court, the High Courts have

unlimited jurisdiction including the jurisdiction to determine their own powers. The following statement of law from Halsbury''s Laws of England

(4th Edn., Vol. 10, para. 713) was quoted with approval:

Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the

jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the

particular court.

This Court observed that the jurisdiction of courts is carved out of sovereign power of the State. People of free India are sovereign and the

exercise of judicial power is articulated in the provisions of the Constitution to be exercised by courts under the Constitution and the laws

thereunder. It cannot be confined to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every

citizen implies the existence of the power of the Court to render justice according to law. Where statute is silent and judicial intervention is

required, courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience.

After reiterating the constitutional status of the High Courts and the nature of jurisdiction exercised by them, the Hon''ble Apex Court has also

clearly spoken about the importance of concluding the elections in the following words:-

On these principles the conclusions arrived at in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, were so stated in

Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others,

(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a

matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all

disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or

protracted.

(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to

anything which does not affect the ''election'', and, if any irregularities are committed while it is in progress and they belong to the category or class

which, under the law by which elections are governed, would have the effect of vitiating the ''election'' and enable the person affected to call it in

question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any

court while the election is in progress.

However, the Constitution Bench in Mohinder Singh Gill case could not resist commenting on Ponnuswami case by observing (vide para. 25)

that the non obstante clause in Article 329 pushes out Article 226 where the dispute takes the form of calling in question an election, except in

special situations pointed out at, but left unexplored in Ponnuswami case.

The above ruling of the Apex Court vividly makes the answer clear that the non obstante clause in Article 243-O of the Constitution of India

unambiguously pushes out Article 226 where the dispute takes the form of calling in question an election, since the remedy lies before the special

tribunal by means of an election petition, and not be made the subject of a dispute before any court while the election is in progress. Therefore, in

conformity with this principle, this Court is justified in not entertaining the writ petition. For all the reasons mentioned above, the writ petition fails

and the same is dismissed. Consequently, M.P. (MD) Nos. 1 to 4 of 2013 are also dismissed. No costs.