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Smt. K. Adilakshmi v. State of Tamil Nadu - W.P. No.21660 OF 2001  RD-TN 639 (1 August 2003)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
The Honourable Mr. Justice V.S. SIRPURKAR
W.P. No.21660 OF 2001
1. Smt. K. Adilakshmi
2. A. Annamalai
3. M. Manjan
4. Smt. V. Jagathambal
5. Kolanji ..... Petitioners -Vs-
1. State of Tamil Nadu
rep. by Collector
2. The Block Development Officer
Kallakurichi Panchayat Union
3. The Assistant Returning Officer
Kallakurichi Panchayat Union
4. A. Arunachalam
5. T. Amutha
6. Natesan ..... Respondents Petition under Art.226 of the Constitution of India, praying for Writ of Mandamus as stated in the petition
For Petitioners :: Mr. S. Udayakumar
For Respondents :: Mr. S.Kandasamy, Spl.G.P.
For respondents 1 and 3 :: Mr. V. Dhakasekar for R2 Mr. P. Tamizhvel
for respondents 4 to 6
This is a pathetic story where the democratic process of election was not only polluted and contaminated but some serious misconducts have been performed and yet this Court is not in a position to do anything in the matter. Before proceeding further, it must be mentioned that the main subject of this writ petition has become infructuous. The following facts will help us understand the situation.
2. There were going to be elections of Village Panchayat at Ranganathapuram village in Villupuram District. The second respondent herein, viz. the Block Development Officer, Kallakurichi Panchayat Union, was the Returning Officer. The elections were to be held on 16-10-2 001 and they were accordingly held. We are concerned with the election process in respect of Ward No.3, which was a multi-member ward in the sense that from that ward, three members, viz. one lady scheduled caste candidate and two other scheduled caste candidates, were to be elected. Counting for this election was done on 21-10-2001 and to begin with, petitioners 1, 2 and 3 herein were declared to be the successful candidates and they were given the certificate of election under the signature of the second respondent, who was being assisted by the third respondent Assistant Returning Officer, Kallakurichi Panchayat Union. Naturally, the petitioners, who were given the certificate of election in their favour duly signed in Form 25, expected to be sworn in as the Members of the Panchayat Union, but to their utter dismay, they found that three other persons, viz. M/s. Amudha, Arunachalam and Natesan were invited to take oath in the first meeting of the council. The said three persons were stated to have taken oath in the first meeting of the council held on 25-10-2001 and were then inducted as the duly sworn members of the village panchayat. The petitioners straight away rushed before this Court by this writ petition, which seems to have been filed on 5-11-2001, i.e. about ten days after the concerned three persons having taken the oath. The petitioners have been studiously careful enough not to join the said three persons as parties to the writ petition. The petitioners came with a very innocuous prayer, which is couched in the following terms: "...pleased to issue a Writ of Mandamus or any other appropriate writ or order or direction, directing the respondents herein to permit the petitioners herein to take oath as ward members in the second respondent meeting of the Renganathapuram Village Panchayat, Kallakurichi Panchayat Union, Villupuram District and pass such further or other orders as this Hon'ble Court may deem fit and proper and thus render justice."
When the whole writ petition is perused, it is seen that the petitioners, after setting out the basic facts regarding the holding of the election, counting of the votes pooled, declaration of results, etc. stated in paragraph 4 that when the petitioners approached the second respondent Returning Officer for taking oath as contemplated under Sec.40 of the Tamil Nadu Panchayats Act, 1994 (in short 'the Act'), they came to know that there was a first council meeting to be held on 2 5-10-2001 and when the petitioners went to the council for attending that meeting, the second respondent had insisted upon them to hand over the original certificate of declaration already given by him. The petitioners then insisted that those certificates were being sought for in a mala fide manner by the second respondent and that the petitioners were erroneously not allowed to take oath on 25-10-2001. Petitioners do mention that they were not able to take oath on 25-10-2001 . In paragraph 6, it is mentioned that the other four elected members took oath on that day and that the Vice President of the Council was elected on 31-10-2001. It is then tried to be shown that the only dispute was that the petitioners were not allowed to take oath though they were the successful candidates in the election. It is further stated in the affidavit that a lawyer's notice was served on the Collector, first respondent herein, on 29-10-2001, who promised to look into the matter, but did nothing. It is further pointed out that no notice for the meeting was served on any of the petitioners and then it is stated in paragraph 7 that the respondents were illegally trying to prevent the petitioners from taking oath. From the whole structure of the petition, it is apparent that the petition was restricted only to the subject of taking oath as the members of the Village Panchayat. The reference to other persons who took oath on that day is studiously omitted in the affidavit and it is probably in that view that the prayer is restricted, which will be apparent from the very language thereof.
3. When the matter came up before this Court, this Court only issued rule on 9-11-2001. Along with the writ petition, a miscellaneous petition (WMP No.32024 of 2001) was also filed in which a direction was sought in the identical terms of the main prayer clause in the writ petition. The learned Judge, however, only issued a notice. Private notice was also allowed and all these orders came to be passed on the same day, i.e. on 9-11-2001. When the miscellaneous petition came up for further hearing on the question of interim relief on 8-1-200 3, the learned counsel for the petitioner made a statement that the direction petition had been rendered infructuous and, therefore, that petition was disposed of. However, the hearing of the writ petition itself was expedited and that is how the matter has come before me now.
4. In the meantime, respondents 2 and 1 have come up with the reply affidavits. The gravamen of these affidavits seems to be that after counting of the votes on 21.10.2001 though the certificate of election in Form No.25 was handed over to the petitioners that was actually wrong and because of the fraud played on the part of the petitioners themselves. It is then accepted that three other persons, viz. M/ s.Amudha, Arunachalam and Natarajan represented that in fact they were the elected candidates as they had secured more number of votes and, therefore, the records were again verified on that very day and it was actually found that the elected candidates were only M/s.Amudha, Arunachalam and Natesan and not the petitioners and, therefore, the certificates of election issued in favour of the petitioners were cancelled and fresh certificates of election were granted in favour of the above said three persons and on that basis those three persons were administered oath and that even the meetings of the council thereafter were over and now almost fifteen meetings have been over after the first meeting and that there would be no question of entertainment of the writ petition. It is also suggested that the writ petition has become infructuous because the initial prayer made in the writ petition did not survive because of the elapse of time.
5. Mr. Udayakumar, learned counsel for the petitioners, however, pointed out that he has made an amendment application during the pendency of the writ petition wherein, he has sought the quashing of the certificates of election issued in favour of the three abovenamed candidates. Learned counsel also submits that he has filed the documents to suggest that fresh certificates of declaration were made in favour of those three persons after cancellation of the certificates of declaration made in favour of the petitioners.
6. There is also another impleadment application on behalf of the three elected candidates who were allowed to take oath on 25-10-2001. That application was ordered on 25-4-2003. They have also filed a counter in which they denied that ners were the elected candidates. They pointed out that the number of votes secured by them was more than the number of votes secured by the petitioners. They further pointed out that in the chaos and melee which took place during the counting process, the petitioners managed to interpolate the result-sheet and create some false documents on the basis of which an entirely incorrect Form No.25 came to be passed in favour of the petitioners and when ultimately they pointed out all these to the Returning Officer, the Returning Officer rectified the mistake and issued fresh certificates of declaration to them by certifying their victory and they were rightly allowed to take oath.
7. On this factual background, it falls for me to consider as to whether the writ petition should be entertained at all and what is the course of action to be taken further.
8. The following are the admitted facts: 1.That there were certificates of declaration issued in favour of the three newly added respondents certifying their election from Ward No.3; 2.that those three respondents were allowed to take oath on 25-10-200 1; 3.that these petitioners did not file any election petition challenging the so-called election of the three newly added respondents; 4.that in the writ petition, the petitioners did not join the three newly added respondents as parties to begin with;
5.that on the day when the writ petition came to be filed, the three respondents had already taken oath but their election was not challenged even in the writ petition;
6.that the writ petition was completely silent about the three respondents having taken oath on 25-10-2001
(though the petitioners also claimed in the writ petition to have approached the authorities on the very day of the first meeting of the council); and 7.that it is now by the amendment petition that the certificates of declaration made in favour of the three newly added respondents was sought to be quashed.
9. I have deliberately given the above facts in order to show that this writ petition, as it stands today, has become infructuous. It will have to be firstly appreciated that in the writ petition, as was filed, there is no mention of any candidate having taken oath as the Ward Member elected from Ward No.3 on 25-10-2001. When we carefully see the writ petition, there is a specific assertion that the petitioners had gone to that meeting and it is at the meeting itself that the second respondent insisted upon them to return the certificates of election which the Returning Officer had signed in their favour. Therefore, it cannot be countenanced that they did not even know of the three other candidates having taken oath in that meeting itself. There is also a reference in the writ petition to the election of the Vice President of the Council of having taken place on 31-10-2001. It, therefore, goes without saying that the petitioners must have known about the three candidates who actually took oath and who were actually treated to be the elected candidates from Ward No.3. If this was so, then, firstly, it was the duty of the petitioners to join them as parties to the present writ petition but, the petitioners remained quiet about it and secondly, petitioners could have straight away proceeded to file an election petition against the three newly added respondents, challenging their election. The petitioners have chosen to do neither. The petitioners have instead chosen to file this writ petition with a limited prayer showing as if that though they were the elected candidates, they were not being allowed to take oath and that the controversy was limited only to that extent. In fact, on the day when the writ petition was filed, the petitioners were bound to know that the second respondent has treated some three other persons to be the elected candidates from Ward No.3 and has also issued the certificates of declaration in their favour. Petitioners could have always asked for the certified copies of the certificates of declaration issued in favour of the three newly elected candidates because that is the right of the petitioners. Even that was not done at the time when the writ petition was filed and ultimately argued on 9-11-2001. Therefore, on the date when the petition was argued for the motion hearing itself the petition had become infructuous because there was no question of any oath having taken by the petitioners in the first meeting of the council or whatever meeting because they were bound to know that the oath was taken by some other three persons on 25-10-2001 which meeting was actually attended by the petitioners. Be that as it may, this, however, was followed by an amendment application in which the prayer is made to quash the certificates of declaration issued in favour of those three newly added respondents. Unfortunately, that cannot be done in a writ petition. That had to be done only by filing a proper election petition. Therefore, it is obvious that this writ petition has become infructuous.
10. Before parting with, it must be expressed that it is really a pathetic manner in which the whole election seems to have been conducted. Two utterly senseless affidavits came to be filed on behalf of the first respondent Collector and second respondent Block Development Officer. The second respondent without explaining anything accepts that he had signed the certificates of declaration in Form No.25 in favour of the petitioners. It is not understood as to how a Returning Officer, who was of a Gazetted Officer of Class II stature straight away signed not one but three certificates of declaration in favour of the candidates who were not actually elected at all. It is not known as to what kind of control was exercised by the second respondent officer on the third respondent who was actually in charge of the counting of the votes as per the contentions raised by the learned Government Pleader. It is really pathetic that the two officers should have been setting up a theory of fraud having been played on the counting authorities and the interpolations having been made by the petitioners. It is not understood how those interpolations could at all be made unless the counting authority itself was for whatever reason a privy to that. It is really strange that no action should have been taken against the second respondent Returning Officer. It is reported that some departmental action has been initiated against the third respondent but even that has not been completed as yet. One only hopes that at least at this juncture, after reading this judgment, the Government wake up and initiate proper action against the erring officials. I do not want to say anything more than this in this writ petition because all this will have to be examined thoroughly by the Government as also the Election Commission of the State. It is only hoped by this Court that the elections are not conducted in the manner they were conducted by the respondents.
11. With this, the writ petition is disposed of as infructuous.
1. The Collector
2. The Block Development Officer
Kallakurichi Panchayat Union
3. The Assistant Returning Officer
Kallakurichi Panchayat Union
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