THE HON’BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY W.P.(MD).Nos.3131 of 3133 of 2022 Order of CJ declaring in a WP of an election. For  Petitioners                     : Mr.V.Raghavachari                            (in all W.P.(MD)s)    for Mr.K.R.Laxman   For Respondents : Mr.P.S.Raman, Senior Counsel                            (in all W.P.(MD)s)    for Mr.S.Sivashanmugam, Standing Counsel   for R-1 : Mr.P.Muthukumar,   State Government Pleader, for RR-2 to 4 COMMON ORDER D.BHARATHA CHAKRAVARHY, J.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.08.2022

CORAM :

THE HON’BLE MR.MUNISHWAR NATH BHANDARI,

CHIEF JUSTICE

AND

THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

W.P.(MD).Nos.3131 of 3133 of 2022

S.V.S.P.Nagaraja .. Petitioner     (in W.P.(MD).No.3131 of 2022)
Rajeswari .. Petitioner     (in W.P.(MD).No.3132 of 2022)
V.Sivakumar .. Petitioner     (in W.P.(MD).No.3133 of 2022)

Versus

  1. The Secretary,

The Tamil Nadu State Election Commission,

No.208/2,  Jawaharlal Nehru Street,

Arumbakkam,

Chennai – 600 106.

  1. The District Election Officer, Office of the District Election Office,
  2. The Returning Officer,

The Tamil Nadu State Election Commission,     Kadambur Town Panchayat,

Kadambur, Tuticorin District.

  1. The Assistant Returning Officer,

The Tamil Nadu State Election Commission,     Kadambur Town Panchayat,

Kadambur, Tuticorin District.

  1. Suresh Kumar
  2. Vellaichamy
  3. Susai Mariyan
  4. The Executive Officer,

The Kadambur Town Panchayat,

Kadambur, Tuticorin District.                                .. Respondents

(in all W.P.(MD)s)

Prayer in W.P.(MD).No.3131 of 2022: Writ Petition filed under Article

226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, to call for the impugned order passed by the 1st respondent in S.O.No.19/2022/TNSEC/ME1, dated 07.02.2022 and to quash the same as far as Ward No.1 is concerned and direct the respondents 1 to 4 to declare the petitioner as winning candidate for the Ward No.I, Kadambur Town Panchayat, Kadambur, Tuticorin District.

Prayer in W.P.(MD).No.3132 of 2022: Writ Petition filed under Article

226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, to call for the impugned order passed by the 1st respondent in S.O.No.19/2022/TNSEC/ME1, dated 07.02.2022 and to quash the same as far as Ward No.2 is concerned and direct the respondents 1 to 4 to declare the petitioner as winning candidate for the Ward No.2, Kadambur Town Panchayat, Kadambur, Tuticorin District.

Prayer in W.P.(MD).No.3133 of 2022: Writ Petition filed under Article

226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, to call for the impugned order passed by the 1st respondent in S.O.No.19/2022/TNSEC/ME1, dated 07.02.2022 and to quash the same as far as Ward No.11 is concerned and direct the respondents 1 to 4 to declare the petitioner as winning candidate for the Ward No.11, Kadambur Town Panchayat, Kadambur, Tuticorin District.

For  Petitioners                     : Mr.V.Raghavachari

(in all W.P.(MD)s)    for Mr.K.R.Laxman

For Respondents : Mr.P.S.Raman, Senior Counsel

(in all W.P.(MD)s)    for Mr.S.Sivashanmugam, Standing

Counsel

for R-1

: Mr.P.Muthukumar,

State Government Pleader, for RR-2 to 4

COMMON ORDER D.BHARATHA CHAKRAVARHY, J.

  1. The brief facts leading to filing of the Writ Petitions:-

On 28.01.2022, the Tamil Nadu State Election Commission

announced the schedule of elections to the urban local bodies comprising of 21 Corporations, 138 Municipalities and 490 Town Panchayats in all the 38 districts of the State of Tamil Nadu.  As per the notification, the elections were to be held on 19.02.2022.  The last date for receipt of nomination was on 04.02.2022 and 05.02.2022 was the date of scrutiny of nominations.

  1. Kadambur Town Panchayat in Thoothukudi District is one of the town panchayats covered by the notification issued under the Tamil Nadu

Town Panchayats, Municipalities and Corporations (Elections) Rules,

2006(Hereinafter referred to as ‘the Rules’).  In respect of Ward Nos.1, 2 and 11, the writ petitioners, in these three writ petitions, filed nominations on 03.02.2022.   In respect of the above Ward Nos.1, 2 and 11, apart from the petitioners, there was one more nomination each and the following tabular column depicts the position:-

Ward No. Candidate Name Party affiliated Nomination date
1 Thiru. Nagaraja

S/o.Thiru.S.V.S.Pandian

Independent 03.02.2022
Thiru.Jeyaraj

S/o. Thiru.Natarajan

DMK 04.02.2022
2 Tmt.Rajeswari

W/o. Thiru.Nagaraja

Independent 03.02.2022
Tmt.Shanmugalakshmi W/o.Thiru Karuppasamy DMK 04.02.2022
3 Thiru.Sivakumar, Independent 03.02.2022
  S/o. Thiur.Vellapandian    
Thiru.Chinnadurai

S/o. Thiru.Karuppusamy

DMK 04.02.2022
  1. As per the notification of the State Election Commission, scrutiny of the nominations were to take place on 05.02.2022 at 10.00 A.M and the candidates were required to be present for scrutiny along with relevant papers, if any. In all the three wards mentioned above, when the matter was taken up for scrutiny of nominations, it so happened that only the petitioners alone were present.  The respective candidates who filed nominations, opposing the petitioners, were not present.  The persons who have said to have proposed their nominations came before the Returning Officer and submitted that they never even proposed the candidates, namely Jeyaraj, Shanmugalakshmi and Chinnadurai  Therefore, the Returning Officer rejected the nominations of the said candidates. The solitary nominations of the writ petitioners, in respect of the each of the ward, were duly accepted and the Form-6, containing the list of valid nominations candidates were also published on 05.02.2022.  Therefore, as a natural corollary, all the petitioners ought to have been declared unopposed as Councilors for their respective wards.  However, on 07.02.2022, the first respondent herein, namely the Secretary, Tamil Nadu State Election Commission, passed an order, bearing S.O.No.19/2022/TNSEC/ME1

canceling the election of Kadambur Town Panchayat in all the wards.  It is necessary to extract the entire order which reads as follows:-

WHEREAS, the Tamil Nadu State Election Commission, inter-alia, notified Ordinary Elections to Kadambur Town

Panchayat, Thoothukudi District to elect their

Ward Members scheduled to be held on

19.2.2022 in the Notification first read above;

WHEREAS,                                                   the                                            District                                           Election

Officer/District Collector, Thoothukodi has reported that the Returning Officer and the Assistant Returning Officers have not acted as per the procedures by explaining the situation and serious lapses during the process of elections vide reference 2nd read above;

WHEREAS, based on the report of the District Election Officer, the Tamil Nadu State Election Commission called for the report of the Election Observer vide reference 3rd read above;

WHEREAS, the Observer while agreeing the report of the District Election Officer and recommended that the electoral process in respect of Kadambur Town Panchayat should be cancelled and that the Returning Officer and the Assistant Returning Officers should be replaced to infuse confidence for conducting free and fair local body election in the Kadambur Town

Panchayats vide reference 4th read above;

WHEREAS, it is observed from the reports of the District Election Officer and the Election Observer that the Retuning Officer has left the office on the day of scrutiny around 1.00 p.m. Without discharging his statutory obligations and the Assistant Returning Officers also closed office of the Returning Officer on the day of scrutiny i.e. on 5.2.2022 and left the office around 3.45 p.m. without discharging their statutory obligations and without sending the

Statutory Reports;

WHEREAS, it is observed by the Tamil Nadu State Election Commission that there are serious lapses on the procedures being followed in the process of election in respect of Wards of

Kadambur Town Panchayat, Thoothukudi

District by the concerned Returning Officer and the Assistant Returning Officers; and

WHEREAS, based on the report of the District Election Officer, Thoothukudi District and the recommendation of the Election Observer, Thoothukudi District, the Tamil Nadu State Election Commission has decided to cancel all the proceedings of the Returning Officer and the Assistant Returning Officers of the Kadambur Town Panchayat, Thoothukudi

District;

NOW, THEREFORE, the Tamil Nadu State Election Commission, in pursuance of rule 139 of the Tamil Nadu Town Panchayats,

Municipalities and Corporations (Elections)

Rules, 2006, hereby orders that all the election proceedings of the Returning Officer and the Assistant Returning Officers in respect of all the

Wards of the Kadambur Town Panchayat,

Thoothukudi District alone stands cancelled.

  1. Thus, it may be seen that only reason which is mentioned in the impugned order for canceling election is that the Returning Officer/Assistant Returning Officer left the office on the scrutiny day at 1.00 P.M and the office of the Returning Officer is closed at 3.45 P.M and therefore, the District Election Officer as well as the Election Observer has indicated in their reports that the rules were not followed in keeping the office open in respect of the entire day and therefore, to infuse the confidence, they should be replaced by other officers and therefore the elections are cancelled with a view to conduct fresh elections by posting new Returning Officer/Assistant Returning Officer. The petitioners have filed these three writ petitions challenging the said order seeking to quash the same and consequently, to direct the respondents to declare them as having been elected as Councillors.
  2. The case of the respondents:-
  3. The respondents, in their common counter-affidavit, filed on

10.03.2022, taken a new stand that the petitioners belong to one family and they have obstructed filing of nominations by others in these wards as per the Enquiry Report submitted by the Revenue Divisional Officer.  On

04.02.2022, at 11.30 A.M, being the last day of nomination, one Rajagopal M.D.M.K party and candidate for Ward No.10, had complained that he was threatened by Nagaraja and his proposer was abducted by the said Nagaraja, the candidate for Ward No.1.  A case was registered in Cr.No.25 of 2022 and a report to the effect was received from the Superintendent of Police, Thoothukudi.  Only in these circumstances, the scrutiny of nominations took place on 05.02.2022 and it is admitted by the respondents in paragraph No.7 of the counter-affidavit that the respective nominations of the candidates belonging to D.M.K political party were rejected during the scrutiny of nominations on 05.02.2022.

  1. It is the further case in the counter-affidavit that the Returning Officer had left the office around 1.00 P.M and at that time, 70 persons, headed by one Visvanatha Pandian, son of Nagaraja, one of the writ petitioner, gathered in front of the office and conducted a demonstration

 

with a request for rejection of the nominations of D.M.K candidates. Pursuant to the demonstration, around 3.30 PM, the nominations were rejected and the office was locked at 3.45 P.M.  Again at 4.45 P.M, the Returning Officer returned to office, but, fainted in the office and was admitted in the hospital at Kayathur for treatment and in the meanwhile, the list of validly nominated candidates have been published in Form-5, who are the petitioners herein.  The candidates contesting in the other wards also made a written complaint to the District Election Officer.  Thereafter, on 06.02.2022, one Thalapushbam, D.M.K candidate of the 4th ward and her proposer Vaithiyalingam, Cheiladurai, D.M.K candidate of 8th ward and his proposer Gomathi altogether four persons were abducted by one of the writ petitioner, namely Nagaraja and a case was registered in Cr.No.27 of 2022. Considering the above facts and the reports received from the officials, the first respondent made recommendations that since the rejected candidates belong to Scheduled Caste, the opportunity for them to contest the urban local body elections has been denied and therefore, there is a tense situation. Therefore, it was recommended that free and fair elections in all 12 wards of

Kadambur Town Panchayat was not possible and therefore, based on the report, the impugned order is passed.

  1. An additional counter-affidavit is also filed, in which, it is contended that only on 07.02.2022, the petitioners could have been declared unelected. This apart, the details of the cases relating to the abduction of candidates and others were also furnished in the additional counter-affidavit.
  2. Further, P.S.Raman, learned Senior Counsel, appearing on behalf of the Election Commission during the course of the arguments, had taken yet another new plea that as per Rule 27(7) of the Rules, 2006, the Returning Officer ought not to have passed orders rejecting the nominations on the same day, but, ought to have given the candidate time till the next day 11.00 A.M. It is useful to extract Rule 27(7) of the Rules, 2006 which reads as follows:-

27. Scrutiny of nomination.–

.

. .

(7) The Returning Officer shall hold the scrutiny on the date and time notified in this behalf in the election notice and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:

Provided if an objection is raised by the Returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it not later than 11.00 a.m. on the next day but one following the date fixed for scrutiny. The Returning Officer shall record his decision on that nomination on the adjourned date.

Therefore, he would submit that in these cases, the procedure followed by the Returning Officer was incorrect and therefore, the elections were countermanded rightly.

  1. The Point for consideration:-
  2. The only issue to be decided in these writ petitions is that whether there was justification to pass the impugned order, canceling the very election itself on the premise that there would not be any free and fair election ?
  3. A perusal of the impugned order which was extracted above, it would be clear that the only reason mentioned in the impugned order was that of the improper conduct of the Returning Officer/Assistant Returning Officer. From the schedule extracted above, it will be clear that the Returning Officer had accepted the nominations at all times open to file nominations and there was no complaint from any one that he could not submit his nomination or that the office was closed.  The office was open at all times material for not prospective candidates to submit their nominations. After receipt of nominations, the list of nominations received in respect of each ward is also duly prepared and displayed as per the rules and it was notified to be taken up for scrutiny.  Admittedly, the scrutiny was done at the date and time notified and therefore, even taking the allegations of closing of the election office after 12.00 P.M or in the evening, did not result in any prejudice to any person whomsoever much less there was not any complaint from any candidate or even an elector that he wants to submit any form or objection to the Returning Officer and that the Returning Officer was not in his seat or that the office was closed.  Therefore, even if the Returning Officer had left early, when he has performed all his duties in accordance with law, we could not see any conduct on the part of the Returning Officer of the Assistant Returning Officer to be a misconduct thereof so as to affect the free and fair conduct of elections.
  4. A perusal of the  counter-affidavit and the additional counteraffidavit and thereafter considering the arguments made by the Learned Senior Counsel before Court, consistently new and alien pleas were introduced which were not contained in the impugned order.  These pleas taken in the counter-affidavit as well as in the submissions made by the learned Senior Counsel cannot said to be supplementary or pleas explaining the reasons already mentioned in the impugned order.  The impugned order has to be tested only on the reasons mentioned therein. The dictum of the Constitution Bench of the Hon’ble Supreme Court of India, in the widely followed judgment in Mohinder Singh Gill Vs  Chief Election

Commissioner[1] which is again a matter relating to cancellation of elections, is as follows:

8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16] :

“Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”

Orders are not like old wine becoming better as they grow older.”

On the face of it, the only reason mentioned for cancelling the elections is  the improper conduct of the Returning Officer/the Assistant

Returning Officer. The same absolutely flimsy and frivolous on the face of it. On a deeper scrutiny of the facts and material records of this  case, it is clearly vexatious and thus the impugned order is liable to be quashed.

  1. Even the new improved reasoning mentioned in the counteraffidavit, regarding the abduction of one Rajagopal, who was the proposer to one Rangasamy, who wanted to file nominations in respect of Ward No.10.  First,  Ward No.10 is not concerned with the petitioners.  Second, the petitioners have filed a reply affidavit, whereunder, it was averred in paragraph No.3 that the said Rajagopal, who is said to have been abducted in Cr.No.25 of 2022 appeared before the learned Judicial Magistrate and gave a statement that he was never abducted.  The said factual position is not controverted by the respondents.  Therefore, the additional reasonings given are even more frivolous and vexatious.
  2. Further the attempted legal arguments, basing on Rule 27(7) of Rules, 2006, by the learned Senior Counsel is again unsustainable firstly, for it was not the reason mentioned in the impugned order. Secondly, Rule 27(7) only lays down that if any objection is received in respect of any nomination, the same shall also be scrutinized without any adjournment. Provided that the concerned candidate can be granted time time till the next day 11.00 A.M for his response on the objection raised by the Returning Officer/Third party and no further time.  In these cases, there was no objection from the third party, but the proposers of the nominations themselves appeared and clearly stated that they never ever proposed the candidates. The concerned candidates, namely Jeyaraj, Shanmugalakshmi and Chinnadurai were not at all present before the Returning Officer at the time and place earmarked for the scrutiny nor sought for any time for filing their objections.  Therefore, there was no occasion for the Returning Officer to have adjourned the matter and to have taken up the case for scrutiny on the next day at 11.00 A.M.  Therefore, the second further improved reasoning attempted by the learned Senior Counsel is also without any

merits.

  1. A clear and categorical reading of the pleadings of the parties along with the F.I.R in Cr.No.26 of 2022, it would be clear that in respect of these three wards, there were no opposing candidates. Interested persons/ political parties which woke up belatedly after the scrutiny tried to make out a scene and unfortunately, the election commission is not right in espousing the cause of a section of people or any political party including the ruling political party who suddenly wanted to put up candidates in respect of the unopposed wards also.
  2. We could not find even any semblance or iota of any situation leading unfair election had the election been proceeded except for the fact that the petitioners would have been declared unopposed in their respective wards. Even if the nominations have been wrongly rejected or even any person has been wrongly prevented, it is for the concerned person to take up the issue by way of a challenge to the election by filing appropriate Election Petition and canceling the entire election was totally uncalled for.
  3. The exercise of power is claimed under Rule 139 of the Rules. In our view, to help the persons/political parties interested to put up new candidates in these wards the power of cancellation is exercised. Thus, it virtually amounts to a colourable exercise to extend the time limit for filing nominations after the expiry of the schedule. There is no provision in the rules for the Election Commission to enable any aggrieved person to file nomination beyond the time limit prescribed in the notification which is sacrosanct and the schedule is inviolable.  What the Election Commission cannot do directly, they cannot do indirectly  by virtue of canceling the election and notifying afresh. The Hon’ble Supreme Court of India, in Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd.,[2] held as

follows:

It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of “quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud”. An authority cannot be permitted to evade a law by “shift or contrivance”. (See Jagir Singh v. Ranbir Singh [(1979) 1 SCC 560 : 1979 SCC (Cri) 348 : AIR 1979 SC 381] and M.C. Mehta v. Kamal Nath [(2000) 6 SCC 213] .)”

  1. The Result :
  2. In the result :
    • The Writ Petitions are allowed and the impugned order stands quashed;
    • The petitioners shall be treated as unopposed in respect of the

three wards namely, Ward Nos.1, 2 and 11 and shall be notified as having been elected unopposed in accordance with law;

  • It will be open for the respondents to notify the date for election in respect of the other wards in respect of the Kadambur Town Panchayat based on the already existing valid nominations and complete the election expeditiously in any event not later than a period of two months from the date of receipt of copy of the order. Consequently, W.M. P.(MD).Nos.2734, 2728, 2729, 2730, 2731 and 2733 are closed.

(M.N.B., CJ)           (D.B.C., J.)

05.08.2022

Index : Yes/No

Speaking order/Non-speaking order grs

To

  1. The Secretary,

The Tamil Nadu State Election Commission,

No.208/2,  Jawaharlal Nehru Street,

Arumbakkam,

Chennai – 600 106.

  1. The District Election Officer, Office of the District Election Office,
  2. The Returning Officer,

The Tamil Nadu State Election Commission,     Kadambur Town Panchayat,

Kadambur, Tuticorin District.

  1. The Assistant Returning Officer,

The Tamil Nadu State Election Commission,     Kadambur Town Panchayat,

Kadambur, Tuticorin District.

  1. The Executive Officer, The Kadambur Town Panchayat,     Kadambur, Tuticorin District.

THE HON’BLE CHIEF JUSTICE

AND D.BHARATHA CHAKRAVARHY, J.

grs W.P.(MD).Nos.3131 to 3133 of 2022

05.08.2022

[1] (1978) 1 SCC 405

[2] (2010) 13 SCC 336

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