Meeradevi Tharani Venthan vs The State Election Commissioner, Tamil Nadu State Election Commission, No. 208/2, Jawaharlal Nehru Street, Arumbakkam, Chennai-600106 and Others

D. Murugesan, J.—The writ petition pertains to the election of the President of Eramalur Village Panchayat in Vandavasi Taluk, which was

held on 19.10.2011. The petitioner, by name, Meeradevi Tharani Venthan and the 4th respondent Rama Ramesh were the contestants. The total

number of votes in six wards is 1070; out of which, 991 votes were polled. According to the petitioner, during the counting which took place on

21.10.2011, she secured 473 votes, whereas her rival candidate, the 4th respondent had secured 468 votes; however, before the declaration of

the results of the election was made, the 4th respondent along with one Arjunan and former Union Chairman M.Chakrapani forcibly trespassed

into the counting room and threatened the Returning Officer, the 3rd respondent not to announce the results. The further specific allegation is that

the said Arjunan and Ramesh, the husband of the 4th respondent forcibly snatched the ballot papers and damaged the same and also assaulted the

Returning Officer and other officials, who were involved in the election duty. By that act, they successfully prevented the Returning Officer from

announcing the results. The further case of the petitioner is that a complaint has been lodged with regard to the above incident and the same is

under investigation. However, the Returning Officer had ordered recounting and after the re-counting, he declared the 4th respondent as ''elected''

as she got 470 votes and the petitioner was shown ''unsuccessful and defeated'' as she had secured only 467 votes. Hence, the petitioner has

approached this Court to declare the subsequent election as invalid and consequently, to direct the Returning Officer to announce the petitioner as

the successful candidate.

Counter affidavits have been filed on behalf of the 1st respondent-the State Election Commissioner, the Returning Officer-the 3rd respondent

and the elected candidate, viz., Rama Reamesh, the 4th respondent.

Before we advert to the provisions of the Rules empowering the Returning Officer for re-counting, we are inclined to refer to the stand taken by

the Returning Officer as well as the 1st respondent, State Election Commission and the counter affidavit of the 4th respondent.

In paragraph 8 of the counter affidavit, the Returning Officer has stated as follows:

It is submitted that in this critical situation, the candidate section did not allow the counting to progress by counter versions regarding the

counting of doubtful votes and they proclaimed the same have to be counted in the presence of the Returning Officer-cum-Block Development

Officer, Vandavasi Panchayat Union. Without any alternate and in order to finish the counting in a smooth fashion, the counted votes in respect of

230AV, 231AV and votes pertaining to 232AV was brought to the table of the Returning Officer for counting. Suddenly the candidates along with

their supporters entered violently in the Returning Officer room. When the doubtful votes which are questioned and which are hindrance for further

counting process, was under scrutiny by the Returning Officer in the presence of the candidate''s husband, viz., Thiru M.S.Tharani Venthan

(H/o.Tmt.Meeradevi) and Thiru B.Ramesh (H/o.R.Rama) at 11.40 PM on 21.10.2011, both of the candidate''s section started arguing themselves

by outbursting unwanted statements and got violent and there was an uncontrollable situation.

Amidst, one Thiru B.Ramesh, H/o.Tmt.R.Rama, candidate with lock and key and who is said to be affiliated to AIADMK party acted violently

and pushed down the Returning Officer by pulling Returning Officer''s hand. Further, Thiru B.Ramesh (H/o.Tmt.R.Rama) along with one Thiru

Arjunan pushed down the Deputy Block Development Officer (Village Panchayat) who was having doubtful votes on his hands and explaining the

same as per rules and plucked those ballot papers and crushed and damaged the same abruptly. Moreover they scolded the counting personnel

and other election duty officials with unparliamentary words such that it has wounded the hearts of the all election officials such that it made the

election officials very much disturbed and made them feared for their life and brought tears such that it resulted in mass strike in the counting

campus. This sort of attitude, cruel behaviour, non maintenance of dignity and decorum on the part of the election candidate and candidate''s

section is highly illegal and, it is against in gross violation to candidate''s rules and regulations prescribed by the Election Commission. The whole

happenings have been got video-graphed which serves as an unshakable evidence.

From the above averments, it is seen that the results of the election have not been declared and there was no indication as to the results have

also been announced. That apart, it is the specific stand of the Returning Officer that when the Deputy Block Development Officer, who was

having doubtful votes in his hands, has explained the same as per the Rules, Thiru B.Ramesh, the husband of the 4th respondent and Thiru Arjunan,

pushed down the Deputy Block Development Officer, plucked those ballot papers, crushed and damaged the same abruptly. It is also specifically

stated that they scolded the counting personnel and other election duty officials with unparliamentary words and the said attitude and behaviour of

those individuals are highly illegal and also in gross violation of the Rules.

As far as the re-counting is concerned, the Returning Officer has stated in paragraph 9 and it reads as under:

It is further submitted that at this critical situation, and to put an end to the boycott of election counting special peace talking were made with the

counting staff by the Returning Officer and the Deputy Superintendent of Police and other officials, the boycott took place at 1.30 AM on

22.10.2011 restored at 3.00 AM and the counting work was made to proceed. In this tight situation, the husbands of both the candidates along

with the candidates section sought for recounting. The Returning Officer denied for the same. But since the gravity for the announcement of result

for the Eramalur Village Panchayat President Elections gained momentum and it brought much gravity tension, oscillation of mind amidst both of the

candidate section and party people. Moreover, there was an unwanted roar-up in the counting centre and apart such that any malpractice would

adhere in the announcement of result. At one point of time, there was huge pressure among the public regarding this issue and the misdeeds

committed by one of the candidates section, a situation arose that would lead to law and order problem. In order to curtail all these mishappenings

and consequent on the requisition made by the candidate for re-counting the same was done in the presence of the both the husbands/counting

agents of the candidates with police protection and the same has been videographed.

It is seen from the said paragraph that there is nothing to indicate as to whether any request was made in writing to the Returning Officer for re-

counting in terms of Rule 66 of the Tamil Nadu Panchayats (Elections) Rules. However, the Returning Officer was forced to order recounting and

consequently, declared the 4th respondent as having been elected as in the re-counting, she has secured 470 votes as against 467 votes secured

by the petitioner.

The Secretary, Tamil Nadu state Election Commission has also filed a counter, wherein in para 7, the Secretary has stated as follows:

It is submitted that the Returning Officer has not complied with the provisions of rule No. 62 of the Tamil Nadu Panchayats (Elections) Rules,

1995 and failed to report about the damage and loss of polled ballot papers during the counting to the District Election Officer and to obtain orders

that too when the margin of difference between the winning candidate and the rival was less than the no.of ballot papers lost. As such the

Commission feels that repoll may be warranted and the Commission will take necessary action repoll it so directed by the Hon''ble High Court.

On a reading of the abovesaid paragraphs, it is seen that, in the event any ballot papers are damaged at the time of counting, the Returning

Officer should stop the election and intimate the same to the District Election Officer and await further orders. Hence, the Secretary, Tamil Nadu

State Election Commission, has stated that in the absence of the above procedure adopted, the Returning Officer should not have ordered re-

counting, without any specific orders.

However, the 4th respondent had denied the above averments of the Returning Officer stating that the Returning Officer has acted in favour of

the petitioner as the petitioner''s husband was the Chairman for the earlier periods and had acquaintance with the 3rd respondent.

At the outset, we are inclined to point out that in a writ petition, this Court would not be justified in going into the disputed questions and to

adjudicate the same. Only in the event, the facts are not in dispute and the counting is illegal without following the rules, such election can be

interfered with, without recourse to the alternate remedy of election petition u/s 258 of the Tamil Nadu Panchayats Act.

The relevant Rules of the Tamil Nadu Panchayats (Elections) Rules are extracted hereunder:

Destruction or loss of ballot papers at the time of counting:- (1) If at any time before the counting of votes is completed, ballot papers used at a

polling station are unlawfully taken out to the custody of the Returning Officer or accidentally or intentionally destroyed or lost or damaged or

tampered with to such an extent that the result of the poll of that polling station cannot be ascertained, the Returning Officer shall forthwith report

the matter to the District Election Officer, State Election Officer and the State Election Commission.

(2) Thereupon, the District Election Officer shall after taking all material circumstances into account either,-

(a) direct that the counting of votes shall be stopped, declare the poll at that polling station to be void, appoint the date and fix the hour for taking

the fresh poll at that polling station and notify the date so appointed and hour so fixed in such a manner as he may deem fit; or

(b) if satisfied that the outcome of a poll at that polling station will not in any way affect the result of the election, the District Election Officer shall

issue such direction to the Returning Officer as he may deem proper for resumption and completion of the counting and for the further conduct and

completion of the election in relation to which the votes have been counted.

(3) Provision of these rules shall apply to every such fresh poll as they apply to the original poll.

Recount of votes:- (1) After the completion of the counting and recording in Form 22 the total number of votes polled by each candidate under

sub-rule (2) of rule 64, the Returning Officer shall announce the same. After such announcement and before the declaration of the result of the

election, a contesting candidate or in his absence his election agent, may apply in writing to the Returning Officer for a recount of all or any of the

votes already counted stating the grounds on which he demands such recount.

(2) On such application being made, the Returning Officer shall decide the matter and may allow the application in whole or in part, or may reject it

in toto if it appears to him to be frivolous or unreasonable.

(3) Every decision of the Returning Officer under sub-rule (2) shall be in writing and contain the reasons therefor.

(4) If the Returning Officer decides under sub-rule (2) to allow an application either in whole or in part, he shall-

(a) count the votes again in accordance with his decision;

(b) amend the result sheet in Form 22 to the extent necessary after such recount; and

(c) announce the amendments so made by him.

(5) After the total number of votes polled by each candidate has been announced under sub-rule (1) or under sub-rule (4) of this rule, the

Returning Officer shall complete and sign the result sheet in Form 22 and no application for a recount shall be entertained thereafter:

Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates or the election agents present at the

completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (1).

In terms of Rule 62, if at any time before the counting of votes is completed, ballot papers used at a polling station are unlawfully taken out to

the custody of the Returning Officer or accidentally or intentionally destroyed or lost or damaged or tampered with, the Returning Officer shall

forthwith report the matter to the District Election Officer, the State Election Officer and the State Election Commission. In terms of sub-rule (2) of

Rule 62, the District Election Officer, after taking all material circumstances into account, may direct that the counting of votes shall be stopped and

declare the poll at the polling station to be void and appoint the date and fix the hour for taking the fresh poll. In the event the District Election

Officer is satisfied that the outcome of a poll at that polling station will not in any way affect the result of the election, he may issue such direction to

the Returning Officer as he may deem proper for resumption and completion of the counting. Admittedly, the Returning Officer, on the background

of the averments made in his counter affidavit, has not reported the incident that had taken place at the time of counting either to the District

Election Officer or to the State Election Commission.

The provisions of Rule 66 relate to the recounting of votes. By that Rule, the Returning Officer is empowered to order re-counting in the event

any representation/ objection is received from any candidate or from his authorised agent, in writing, requesting for re-counting after the

announcement of the result but before the declaration of the same. This provision is intended to enable the candidate, who is aggrieved by the

counting, to make objections in respect of the votes which could have been counted in his favour and or not accounted actually in his favour. This

power is also available to the Returning Officer only in the event of specific request in writing is made before the declaration of the result of the

election and not otherwise. Factually, it is not the case of the petitioner and the 4th respondent that the results have been declared and particularly

any objection was made by the 4th respondent in writing before such declaration. In view of the above, the invocation of Rule 66 by the Returning

Officer for re-counting is illegal as he could act, in the given facts and circumstances of the case, only under Rule 62. In as much as the Returning

Officer had not followed Rule 62 and has suo motu decided for re-counting, that too under pressure from the candidate, in our opinion, such a

recounting done in contravention of the provisions of Rule 62 as well as Rule 66 cannot be sustained in the eye of law. Accordingly, there shall be

a declaration, declaring the result of the 4th respondent is illegal and accordingly, it is set aside. This leads us to the next question as to whether, by

virtue of the present order, the petitioner would be entitled for a declaration that she has been elected. From the facts narrated above, it is clear

that the counting was not completed and there was no declaration so far made. In the absence of completion of the counting, as admittedly there

was some commotion and some of the ballot papers have been destroyed, and the only course open to the Returning Officer to report to the

District Election Officer, State Election Officer and the State Election Commission and await orders, in our opinion, there has been no completion

of counting in the first phase. In such an event, the petitioner is also not entitled for a declaration that she has been elected. Having noticed the

above, the State Election Commission has also come forward with the categorical case that a fresh election alone is to be ordered. In these

circumstances, the relief sought for by the petitioner that she should be declared as ''elected'' cannot be granted. Accordingly, the writ petition is

partly allowed only to the extent declaring the result of the 4th respondent as illegal. The State Election Commission shall notify the election to the

Panchayat in question for the post of the President in Panchayat and conduct fresh election. The State Election Commission must ensure that none

of the officers, who had entrusted with the election work, shall be deployed for the said purpose and new set of officers must be deployed. No

costs. Consequently, connected M.P.is closed.