M. Kalaimathi vs Muthuselvi Ravikumar and Others

S. Tamilvanan, J.—Challenging the order, dated 01.08.2008 made in E.O.P. No. 310 of 2006 on the file of the Principal District Munsif

Court, Coimbatore, this Civil Revision has been preferred.

The Petitioner and the Respondents 1 to 3 herein contested in the local body election for the post of President of Ambothi village panchayat,

Avinashi Taluk within the Annur Panchayat Union. The first Respondent herein was declared elected by the Election Officer, P.W.4. Challenging

the same, subsequently, the Petitioner herein filed the petition under Sections 258 and 259 of the Tamil Nadu Panchayats Act 1994 r/w Rules 122

and 123 of the Tamil Nadu Panchayat Election Rules, 1995.

Mr. R. Jayaprakash, learned Counsel appearing for the Petitioner submitted that the first Respondent, Tmt. Muthuselvi Ravikumar was declared

as winning candidate securing 496 votes, while the Petitioner herein, according to the Election Officer, secured only 495 votes. Learned Counsel

for the Petitioner further contended that the first Respondent was declared elected by one vote in excess of the votes secured by the Petitioner

herein. The main ground raised by the learned Counsel appearing for the Petitioner is that as per record, 250 voters were polled in Ward No. 3,

however, while counting 249 votes alone were found, though that was brought to the notice of the fourth Respondent, Election Officer, no action

was taken by him. The Petitioner as well as the first Respondent raised their objection, but the Election Officer, without intimating the same to the

fifth Respondent, District Collector, declared the first Respondent as winning candidate. Learned Counsel appearing for the Petitioner also drew

the attention of this Court to Section 259(1)(b) of the Tamil Nadu Panchayats Act, 1994 (herein after referred to as Act) and Rule 62 of the Rules

framed thereunder and contended that the election officer had not followed the mandatory provisions.

It is seen that Section 259(1) of the Act stipulates the grounds for declaring election to be void for violation of certain mandatory provisions of

the Act and the Rules. As per Section 259(1)(d)(iv), subject to the provisions of Sub-section (2), if the District Judge is of the opinion that the

result of the election in so far as it concerns a returned candidate has been materially affected by the non-compliance with the provisions of this Act

or of any rules or orders made thereunder, the court shall declare the election of the returned candidate to be void.

According to the learned Counsel appearing for the Petitioner, the fourth Respondent, Election Officer has not followed the mandatory

procedures, as contemplated under Rule 62 of the Act, relating to destruction or loss of ballot papers at the time of counting. He has further

contended that as per Rules 62 (1) and (2) (a), if at time before the counting of votes as completed, ballot papers used at a polling station were

unlawfully taken out of the custody of the Returning Officer or accidentally or intentionally destroyed or lost or damaged or tampered with to such

an extent, the result of the polling station could not be ascertained, the Returning Officer shall forthwith report the matter to the District Election

Officer and the State Election Commission. There upon, the District Election Officer shall take all material circumstances into account and the

counting of votes be stopped or declare the poll at the polling station void, appoint a date and hour for conducting fresh poll for the polling station

and notify the date so appointed and hour so fixed in such a manner as he may deem fit.

Per contra, Mr. Govi Ganesan, learned Counsel appearing for the first Respondent submitted that there was no illegality or material irregularity

in the procedure being followed by the Respondents 4 to 6 declaring the first Respondent herein as the winning candidate in the election.

Learned Counsel appearing for the first Respondent submitted that Rules 62 (1) and 2(a) are not applicable to the facts and circumstances of

the case, for the alleged missing of one ballot paper, relating to a polling booth. According to him, though the Petitioner as well as the first

Respondent had raised objection about the alleged missing of one ballot paper before counting, no one had requested to stop the counting of

votes. Hence, after counting of votes and results being announced by the fourth Respondent, the Petitioner has taken an unsustainable plea as an

after thought. Learned Counsel for the first Respondent further contended that as per the counter filed by the fourth Respondent, it is made clear

that the first Respondent had got two votes more than the votes secured by the Petitioner herein, as the first Respondent had secured 497 votes,

including one postal vote. According to him, even assuming, without admitting that even if the missing of vote in favour of the Petitioner herein, as

there was a postal vote, the first Respondent could have been declared as a winning candidate, as he secured two votes more than the votes

secured by the Petitioner herein.

Learned Counsel appearing for the Petitioner drew the attention of this Court to the finding of the court below, wherein the court below has

stated that it was an admitted fact that the first Respondent won the election by one vote. Though the court below has specifically stated, ""it is an

admitted fact"", as contended by the learned Counsel appearing for the first Respondent, it is seen that there is no admission by the first

Respondent, hence, the said finding of the court below is not supported by any material or admission made by the first Respondent. The first

Respondent has not preferred any appeal, challenging the finding that the first Respondent had obtained one vote more than the Petitioner herein.

When there is no admission by the first Respondent, that he had obtained only one vote more than the Petitioner, the finding of the court below

stating it as an admitted fact that the first Respondent has obtained one vote more than the Petitioner, it cannot be construed as a finding, based on

the materials or evidence available, as the fourth Respondent, the Election Officer has specifically stated that the first Respondent had obtained one

more postal vote. In the counter, the fourth Respondent has stated that the result was announced through loud speaker in a public system that the

Petitioner had lost the election by a margin of two votes, including one postal vote.

The fourth Respondent has further stated in the counter in paragraph number 13 that the number of votes polled was 250 by the Presiding

Officer for Booth No. 14 (M), during sorting time, it was found only 249 ballot papers available in the ballot box, however, it was mistakenly

stated by the Presiding Officer that there were 250 votes. He has further stated in the counter in paragraph number 16 that the first Respondent

secured 497 votes, including one postal vote and hence, she was declared elected by a margin of 2 votes.

Both the learned Counsel drew the attention of this Court to the following decisions rendered by this Court:

P. Dharmalingam v. Arumugham @ Sattu 2010 (6) CTC 18

M. Kalavathy Vs. K. Chitra, Block Development Officer, Also Returning Officer,

Ponnusamy N v. Returning Officer and Special Grade Executive Officer 2001 (1) CTC 232

It is seen that the decision in M. Kalavathy v. K. Chitra, reported in 2009 (3) MLJ 345, relates to recounting of votes and this Court decided

that recounting of votes could be ordered very rarely and on the specific allegations in the pleadings, when there is illegality or material irregularity

committed while counting and that recount should not be ordered merely because the margin of votes is narrow and further, the onus to prove the

allegations for the recount of the ballot papers would be on the election Petitioner and this Court further held that election should be conducted

without any malpractice and preservation of the secrecy of the ballot is a sacrosanct principle in any democracy.

In the aforesaid revision, this Court has decided the issues involved under Sections 259(1)(d)(iii) and 259(1)(d)(iv) of the Tamil Nadu

Panchayats Act. Here in the instant case, it relates to Rule 62 of the Tamil Nadu Panchayats Act and therefore, as contended by the learned

Counsel appearing for the Respondents, the issue involved for determination of this Civil Revision Petition is not directly connected with the

aforesaid decision rendered by this Court.

In P. Dharmalingam v. Arumugham @ Sattu, reported in 2010 (6) CTC 18, u/s 258 of Tamil Nadu Panchayats (Elections) Act, 1994 and

rules 63 and 66 of Tamil Nadu Panchayats Rules 1995, this Court held that the burden of proof is upon the Petitioner to prove his allegations, as

there was no written application, seeking recounting of votes. As there was no illegality or material irregularity to set aside the order passed by

Election Tribunal, the Civil Revision Petition was dismissed by this Court.

The Hon''ble Supreme Court in T.A. Ahammed Kabeer Vs. A.A. Azeez and Others, , has held as follows:

It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of ballot must be zealously

guarded. On account of a right following of these principles the Election Courts are inclined to lean in favour of the returned candidates and place

the onus of proof on the person challenging the result of election, insisting on strict compliance with the rules of pleadings and excluding such

evidence from consideration as is in divergence with the pleadings . However, what has so developed as a rule of practice should not be unduly

stretched; for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only he

should represent the constituency who has been chosen by the majority of the electors. This is the purpose and object of the election law.

It cannot be disputed that the purity of election process needs to be preserved unpolluted, so as to achieve the predominant goal of

democracy, however, it is the burden of the Petitioner to establish that the grounds raised against the election is based on materials to declare the

poll at the polling station to be void, which relates to Section 62 of the Act.

It has been made clear by the Hon''ble Supreme Court that the election process must be unpolluted and genuinely acceptable. As per the

majority view of the people, the winning candidate should be declared elected. There should be no scope for malpractice or unhealthy and

improper procedure, being followed, in order to support one of the candidates to win in the election.

Admittedly the election relating to the Revision was held on 13.10.2006. According to the Petitioner, the first Respondent, who was declared

as winning candidate, secured 496 votes and the Petitioner herein could secure 495 votes and therefore, the first Respondent was declared as

winning candidate by one vote, though there was one missing ballot paper.

Learned Counsel appearing for the Petitioner submitted that in ward number 3, as per record, 250 votes have been casted, however, while

counting, the same was found only 249 ballot papers. The fourth Respondent, Election Officer had failed to intimate the same to the District

Election Officer and the State Election Commission. Therefore, the Petitioner seeks the relief to declare that the election of the first Respondent as

President of Ambothi village panchayat in Avinashi Taluk within the Annur Panchayat Union as void. Though the Petitioner and the first

Respondent had raised their objection for the alleged missing of one ballot paper, relating to ward number 3, neither the Petitioner, nor the first

Respondent had asked the fourth Respondent to stop the counting, in view of the missing of the ballot paper and to proceed only after deciding the

said issue.

It is seen that as per Section 259(1)(d)(iv) of the Tamil Nadu Panchayats Act, subject to the provisions of Sub-section (2) of the aforesaid

section, the District Judge is empowered to declare the election void for the non-compliance of the provisions of the Act or of any rules or orders

made thereunder. Sub-section (2) of Section 259 would say that if in the opinion of the court, a returned candidate has been guilty by himself or by

his agent by way of any corrupt practice, that may lead to such declaration. In the instant case, there is no allegation or material available to show

that the first Respondent had adopted any corrupt practice, in order to be the successful candidate in the election. Though there was objection by

the Petitioner and the first Respondent with regard to the alleged missing of one ballot paper, they had not raised objection for the counting of

votes by the fourth Respondent. In Rule 62 of the Rules of the Tamil Nadu Panchayats Act, 1994, it is seen that the word ballot paper has been

employed.

Learned Counsel appearing for the first Respondent submitted that the aforesaid rule is not applicable in the present case, however, the learned

Counsel appearing for the Petitioner submitted that the term ballot papers would include missing of even one ballot paper, since the first

Respondent was declared elected on the ground that he had secured one vote more than his immediate rival candidate, the Petitioner herein.

As per the counter filed by the fourth Respondent, it has been made clear that there was one postal vote in favour of the first Respondent.

Though the court below has held that the first Respondent was the successful candidate by one vote, the counter filed by the Election Officer

clearly show that the first Respondent had secured 2 votes more than the Petitioner, including one postal vote. However, the Court below has not

considered the same to give the finding against the averments made by the Election Officer, a neutral party. As the Petitioner herein had not raised

her objection for counting votes on account of the alleged missing of one vote and raising the same as a ground would show that she was not

serious about the alleged missing of the vote at the time of counting and therefore, the said grounds raised by the Petitioner could be construed as

an after thought, since the first Respondent was declared elected. Considering the postal vote and the non-objection in counting the votes by the

Petitioner, I am of the view that it would not meet the ends of justice, to declare the election void and to conduct a fresh election, after a period of

more than four years.

Learned Counsel appearing for the Petitioner submitted that the finding of the court below that the first Respondent has secured only one vote

more than the Petitioner was not challenged and hence, the same could not be a valid defence, as the fourth Respondent, Election Officer has

categorically stated that there was one postal vote in favour of the first Respondent in addition to the one vote obtained by her more than the rival

claimant.

In the light of the decisions rendered by the Hon''ble Apex Court and this Court, I am of the view that the election of the first Respondent as

president of a village panchayat cannot be declared void on the facts and circumstances of the case, on the ground raised by the Petitioner herein,

as this Court finds no error or material irregularity, which would warrant any interference of this Court, in the order passed by the Court below, to

meet the ends of justice, when the term is almost over, accordingly, this Civil Revision Petition is liable to be dismissed.

In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No order as to costs.