S.R. Velusamy vs The District Collector, The State Election Commission, The Managing Director The Coimbatore District Co-operative Milk Producers' Union Limited and R. Saminathan

M.M. Sundresh, J.—The petitioner herein is the unsuccessful candidate who was lost in the election to the fourth respondent. The election

was conducted in the year 2006 for the Gubbepalayam Village Panchayat. In pursuant to the said election, the fourth respondent has been elected

as a member and thereafter, he has been elected as a President.

The petitioner has made a representation to the second respondent herein on 08.08.2007 stating that the fourth respondent has suppressed

certain material facts in the nomination papers filed by him to the effect that the fourth respondent was a contractor with the Coimbatore District

Co-operative Milk Producers'' Union Limited providing the supply of transport vehicles for the period between 01.03.2006 to 31.12.2007.

Therefore, the petitioner has requested the second respondent to take action by dismissing the fourth respondent.

Thereafter, the second respondent has sent a letter to the first respondent in-turn directed the Commissioner of Annur Panchayat Union to

initiate an enquiry. The said Commissioner in and by proceedings dated 24.09.2007 has given a finding that the fourth respondent was a contractor

with the third respondent at the time of contesting the election. The said letter was followed by another letter dated 10.10.2007 sent by the

Commissioner of Annur Panchayat Union that for the period between 01.03.2006 to 31.12.2007 the fourth respondent was having a contract to

supply transport vehicles in favour of the third respondent Co-operative Society. The third respondent has also given a letter to the Commissioner

of Annur Panchayat Union to the said effect. In pursuant to the same, the first respondent has sent a letter to the second respondent in the month of

December 2007 that the only option open to the petitioner is to file appropriate petition before the Court of law.

The learned Government Advocate also gave a opinion to the Commissioner of Annur Panchayat Union stating that no proceedings can be

taken and it is always open to the petitioner to take action through the Court of law. Consequent to the same, the Commissioner of Annur

Panchayat Union wrote a letter to the petitioner to have recourse by a Court of law on the ground that the existing provisions contained in the

Tamil Nadu Panchayat Act, 1994 do not confer such an action against the fourth respondent. In view of the above said facts, the petitioner has

preferred the present writ petition seeking the relief of Quo Warranto to show-cause under what authority the fourth respondent is holding his post

as the president.

The learned Counsel for the petitioner submitted that a reading of Section 37 and 38 of the Tamil Nadu Panchayat Act, 1994 would clearly

show that the fourth respondent is disqualified to hold the post of President as well as the Member. According to the learned Counsel in view of

the undisputed fact that the fourth respondent was having interest with the third respondent before the election and even thereafter the fourth

respondent should be removed from the post of the President as well as from the Membership of the Panchayat. The learned Counsel for the

petitioner further submitted that Section 41 of the Tamil Nadu Panchayat Act, 1994 would not be applicable since the petitioner is not a member

of the Panchayat and therefore, a writ of Quo Wwarranto is maintainable.

The learned Counsel for the petitioner has relied upon the judgment reported in K. Venkatachalam Vs. A Swamickan and Another, in support

of his contentions and submitted that when the facts are not in dispute, the power under Article 226 of the Constitution of India will have to be

exercised by the Hon''ble High Court, not withstanding the fact that the petitioner has not availed the alternative remedy of filing an election petition

and the same having because time barred.

According to the learned Counsel, when it is very obvious that the fourth respondent is not competent to hold the post then the Hon''ble High

Court has exercise the power under Article 226 of the Constitution of India since the same would amount to committing a fraud on the

Constitution. The learned Counsel for the petitioner also relied upon the judgment reported in Lachhman Das Arora Vs. Ganeshi Lal and Others,

to submit that the provisions of the limitation act cannot be extended to the petitioner supersede representation of People''s Act and therefore the

petitioner cannot be made to seek his remedy under the said act. The learned Counsel for the petitioner further relied upon the judgment reported

in 2000-3-L.W. 553 [Sanniyasi v. Srinivasan and Anr.] in support of his case to submit that when there is a subsisting contract between a member

of the Panchayat then the same would amount to disqualification wanting the removal of the member.

Per contra, the learned Counsel for the fourth respondent submitted that the relief sought for in the writ petition is not maintainable in law and

facts. The writ petitioner after having failed to avail the alternative remedy cannot invoke the discretionary jurisdiction of the Hon''ble High Court. It

is further submitted that even assuming the writ petitioner has a grievance then there is a remedy open to the petitioner u/s 41 of the Tamil Nadu

Panchayat Act, 1994.

According to the learned Counsel, the said exercise is automatic since admittedly there is no disqualification even assuming the documents relied

upon by the petitioner are true. The mere fact that the fourth respondent is having a subsisting contract with the third respondent cannot be a

ground to disqualify the fourth respondent since the same is not been mentioned as a disqualification u/s 37 and 38 of the said Act. It is further

submitted that in the judgment reported in 2003-1-L.W.740 [K.V. Muthuramalingam v. Soloman and Anr.] the Hon''ble High Court has held that

if a member is having subsisting contract with the Public Works Department as well as Highways Department, the same would not attract the

disqualification u/s 37 of the Act.

It is further submitted that the disqualification for a candidate as mentioned in Section 37 is parametric with the provision contained for

disqualification for a member as envisaged u/s 38 of the Act. Therefore, the entire writ petition is misconceived since the same has been filed by a

person who has lost the election and hence the writ petition will have to be dismissed as the one which lacks bonafides.

The learned Government Advocate submitted that the first respondent has rightly rejected the request of the petitioner since no action can be

taken under the District Municipalities Act. The petitioner cannot invoke the jurisdiction of the Hon''ble High Court under Article 226 of the

Constitution of India.

I have heard the arguments of the learned Counsels appearing for the parties.

In the present case on hand, there is no dispute of the fact that the fourth respondent was having a contract at the time of filing his nomination

and the said contract continued after the election of the fourth respondent. Further, the said contract has been entered into between the fourth

respondent and the third respondent. Section 37 of the Tamil Nadu Panchayat Act, 1994 disqualifies a candidate provided the said candidate is

having interest in a subsisting contract made with or any work done for any Panchayat. Similarly, Section 38 of the said Act provides that a

member to be disqualified if he acquires any interest in any subsisting contract made with or work being done for any Panchayat. Therefore, a

reading of the above said Sections would clearly show that there is no bar for the fourth respondent for having entered into contract with the third

respondent.

The third respondent is an independent body owning its creation to the Co-operative Societies Act, 1983. It cannot be said that the third

respondent forms part and parcel of the Panchayat. The provisions for disqualification will have to be construed strictly by this Hon''ble High

Court. As already observed a reading of the said provisions contained in Section 37 and 38 of the Tamil Nadu Panchayat Act, 1994 would not

include the contract between the Co-operative Society and the fourth respondent. Further, the judgment relied upon by the learned Counsel for the

fourth respondent reported in 2003-1-L.W.740 [K.V. Muthuramalingam v. Soloman and Anr.] is squarely applicable to the present case on hand.

In the said judgment, the Hon''ble High Court has held as follows:

The Court below based upon a decision of this Court in Sanniyasi v. Srinivasan and The Returning Officer, Sankarapuram Panchayat Union,

Villupuram Taluk 2000 (3) L.W. 553 came to the conclusion that although the revision petitioner is a contractor in Public Works Department and

Highways Department, he is disqualified from contesting the election in the Panchayat also. The learned Counsel for the revision petitioner

contended that the order passed by the Election Tribunal is not correct. u/s 37(3)(c) of the Panchayat Act, only candidates having subsisting

contract with the Panchayat are disqualified from contesting the election. He did not have any contract with any Panchayat. He never suppressed

that he was a Government Contractor. The decision relied on by the court below, will not apply to the facts of the case. The Tribunal also

committed an error of jurisdiction in declaring elected the 1st respondent as President in the place of the revision petitioner. The matter was also

not referred to the competent authorities for consideration of disqualification as provided under Article 243(f)(2) of the Constitution of India.

Therefore, taking into consideration of the above said judgment and on a consideration of the factual position is not in dispute, this Court is of

the opinion that the writ petition filed is totally misconceived. Accordingly, the writ petition is dismissed. No costs. Consequently, connected

miscellaneous petition is closed.