WP/16460/2010 of M.R.KANNAN, Vs TAMIL NADU STATE ELECTION on 23 December 2010

ORDER

The petitioner has filed the present writ petition under Article226 of the Constitution of India seeking issuance of writ ofdeclaration declaring that the election conducted to Ward No.17 ofThiruvarur District Panchayat on 22.07.2010 as invalid for violationof the mandatory provisions contained in Rules 62 and 66 of the TamilNadu Panchayats (Election) Rules, 1995 and consequently to hold freshelection as per law.

2. Mr.K.Duraisami, learned Senior counsel appearing for thepetitioner submitted that the petitioner contested as a candidate forWard No.17 of Thiruvarur District Panchayt Election, which was heldon 22.07.2010 and on completion of the polling, total number of votespolled in all 83 polling stations of Ward No.17 were 29070.Thereafter, the counting of votes were undertaken by the 3rdrespondent on 24.07.2010 and after the counting, it was found thatthe number of votes counted were 28966 and thereupon, it was foundthat 104 votes were found missing in the counting process. In spiteof the written objections were submitted before the declaration ofthe result for recounting of the ballet papers, as against the Rules62 and 66 of the Tamil Nadu Panchayat (Elections) Rules, 1995, the3rd respondent, by his communication dated 24.07.2010, sent adetailed communication to the 2nd respondent admitting that 104polled ballot papers were missing at the time of counting. However,the 3rd respondent declared the election to the effect that thepetitioner obtained 14245 votes and the 4th respondent obtained 14285votes and as a result, the 4th respondent was declared as elected.Therefore, the petitioner has filed the present writ petitionchallenging the election held on 22.07.2010.

3. Mr.I.Paranthaman, learned Additional Government Pleaderappearing for the respondents 1 and 3 contended that the present writpetition filed by the petitioner challenging the election to WardNo.17 of Thiruvarur District Panchayat held on 22.07.2010 to declareas invalid, cannot be entertained by this Court under Article 226 ofthe Constitution of India, in view of the absolute and explicitconstitutional bar imposed by the Constitution of India under Article243-O(b). Therefore, he further pleaded that the petitioner has tonecessarily approach the District Court as per Section 258 r/w Rule123(1) of Tamil Nadu Panchayat (Elections) Rules, 1955, as there isno violation of Rules 62 and 66 of the Tamil Nadu Panchayat(Elections) Rules, 1955.

4. Mr.Ayyathurai, learned counsel appearing for the 4threspondent also resorting to Section 258(1) of the Tamil NaduPanchayat Act, emphatically brought to the notice of this Court, theratio laid down by the Apex Court in the case of Jaspal Singh ArorarVs. State of M.P reported in (1998) 9 SCC 594 for a proposition that

the election petition filed under Article 226 of the Constitution ofIndia is not maintainable and therefore, he sought for dismissing thepresent writ petition as not maintainable.

5. In his further submission, he urged before this Court todismiss the writ petition as he has got effective and alternativeremedy by way of filing the election petition under Section 258(1) ofthe Tamil Nadu Panchayat(Elections) Act, 1955 before the DistrictCourt. Further, it was also contended that immediately after pollingwas over, Form 20 was prepared by the polling officer in each boothand the same was also sent along with ballot box to the countingcentre. Once Form 20 is sent along with ballot box, Form 20 will bethe authoritative record of actual votes polled, therefore, there wasno missing of any votes, even if the allegation of the petitioner isto be enquired into regarding the number of votes polled were missingand the issue raised in the present writ petition cannot be decidedby this Court on the basis of the affidavit and counter affidavit asthe same can be decided only by the election petition before theDistrict Court in accordance with the procedure prescribed therein.

6. Heard the learned counsel appearing on either side andperused the materials available on record.

7. Let us see the Constitutional bar imposed by the Constitutionof India under Article 243-O(b), which is extracted as under:-Article 243-O - Bar to interference by Courts in electoral matters.Notwithstanding anything in this Constitution --- (b) no election to any Panchayat shall be called inquestion except by an election petition presented to suchauthority and in such manner as is provided for by or underany Law made by the Legislature of a State.

The Apex Court on considering the bar imposed by Article243-O(b) as absolute and explicit in the case of Jaspal Singh AroraVs. State of M.P. (1998 9 SCC 594) has ruled that no election ofpresident can be challenged by filing writ petition under Article 226of the Constitution of India. A mere cursory look at the non-abstante clause embedded in Article 243-O viz; notwithstandinganything in this constitution, increasingly clear the doubt thatinspite of Article 226, no election petition can be entertained bythe High Court. Therefore, I am of the view that the constitutionalembargo imposed by Article 243-O does not permit the High Court toentertain any election petition under Article 226 of the Constitutionof India, hence, I dismiss the writ petition as barred by Article243-O.

8. When the matter was argued, the learned Senior counselagreeing to go before the competent authority by filing electionpetition, as per Section 258 of the Act before the District Judge,further in his own inimical style pleaded that the time limit forfiling election petition is only 45 days from the date of declaration

of results and since the petitioner in good faith has filed the writpetition under Article 226 before this Court, he may be given libertyto file an election petition by excluding the period of pendencyspent in the present writ proceedings, as otherwise, the electionpetition would not be entertained in view of delay. In support hissubmission, he has also relied upon a judgment of the Apex Court inthe case of M/s.Consolidated Engineering Enterprises Vs. PrincipalSecretary (Irrigation Department) and Others reported in 2008 AIR SCW4182, for a proposition that the period of pendency and time takendiligently pursuing remedy before the wrong forum may be consideredas sufficient cause for condoning the delay and therefore, sought forextension of limitation and such limitation cannot be unreasonable inexcluding the period of pendency while computing the period oflimitation. But the Hon'ble Apex Court in the said judgment has heldthat the general rule as far as special and Local Acts are concernedis that the specified provisions including Section 5 of theLimitation Act will apply provided the special or local Act providesa period of limitation different from that prescribed under theLimitation Act. There is an additional requirement viz. that thespecial or local Act does not expressly exclude the application ofthe Limitation Act. On that basis, it was held that Section 14 (2)of the Limitation Act, 1963, is applicable to proceedings underSection 34(1) of the Arbitration and Conciliation Act. Therefore,the bar of limitation should not affect a person honestly doing hisbest to get his case tried on merits but failing because the Court isunable to give him such a trial, would not be applicable to anapplication filed under Section 34 of the Act of 1996. In view ofthe plea for exclusion of time taken by the writ petitioner, it isrelevant to refer Sections 5 and 14 of the Limitation Act."5. Any appeal or any application, other than anapplication under any of the provisions of Order XXI of theCode of Civil Procedure, 1908, may be admitted after theprescribed period, if the appellant or the applicantsatisfies the court that he had sufficient cause for notpreferring the appeal or making the application within suchperiod."

14. In computing the period of limitation for anyapplication, the time during which the applicant has beenprosecuting with due diligence another civil proceeding,whether in a court of first instances or of appeal orrevision, against the same party for the same relief shallbe excluded, where such proceeding is prosecuted in goodfaith in a court which, from defect of jurisdiction or othercause of a like nature, is unable to entertain it"

9. The Apex Court, in the case of M/s.Consolidated EngineerEnterprise (supra), upholding the judgment of the Division Bench ofKarnataka High Court, made it clear that the appellant had notprosecuted the matter in other courts with due diligence and in goodfaith and therefore, he is entitled to claim the exclusion of time in

prosecuting the matter in wrong courts. But, in the present case,the facts are all together different. Instead of challenging theelection petition under Section 258 of the Act before the DistrictCourt, he has wrongly come to this Court by filing writ petitionunder Article 226 of the Constitution of India. When theConstitution of India specifically imposes absolute and explicit barunder Article 243-O(b) making the position all time clear with non-abstante clause that notwithstanding anything in this Constitution,no election to any Panchayat shall be called in question except by anelection petition presented to such authority and in such manner asis provided for by or under any Law made by the Legislature of aState, the command is unambiguous that the bar is absolute andtherefore, in view of the ratio laid down by the Apex Court in thecase of Jaspal Singh Arora (supra), this Court cannot exclude theperiod of pendency of the writ petition to file an election petition,which will otherwise amount to circumventing the explicit bar imposedunder Article 243-O and also Section 258(1) and Rule 123(1) of theTamil Nadu Panchayat (Elections) Act and Rules, 1955 respectively.Further, in this case, when legislature have given 45 days from thedate of publication of the result of the election for filing electionpetition, this is the period prescribed to file an election petition.Further, in view of the authoritative pronouncement of the Apex Courtreferred hereinabove, I hold that the High Court has no power tocondone the delay in filing the election petition, after the expiryof forty five days by excluding the period of pendency of writpetition filed by the petitioner.

10. In the case of M/s.Consolidate Engineering Enterpirses(supra), the appellant instead of filing an application to set asidethe award before the Principal District Judge, Bangalore RuralDistrict, Bangalore, he filed the said application before the CivilJudge (Senior Division), Ramanagaram, Bangalore Rural District. Bothare Civil Courts and there was no constitutional bar for filing writpetition. But, in the present case, he has come to the Writ Courtunder Article 226 of the Constitution of India by filing this writpetition, which has been explicitely barred by Article 243-O(b) whichcommands, notwithstanding anything in this Constitution, no electionto any Panchayat shall be called in question except by an electionpetition presented before the competent authority constituted underthe Act enacted by State. Therefore, the argument advanced by thelearned Senior counsel appearing for the petitioner that there was abonafide mistake in choosing the High Court under Article 226 forfiling election petition, cannot be an acceptable argument andaccordingly, the judgments cited by the learned Senior counsel forthe petitioner is distinguishable both on facts and law.

11. It is relevant to refer to Section 258(1) and Rule 123(1) ofthe Tamil Nadu Panchayat (Elections) Act and Rules, 1995,respectively, which are extracted as under:-

Section 258(1) : No election of a president or a chairmanor a member shall be called in question except by anelection petition presented to the district judge of thedistrict in which the panchayat is situated, within [fortyfive days] from the date of the publication of the resultof the election under this Act.

123. (1) An election petition shall be presented within45 days from the date of publication of the result of theelection under the Act.

Explanation:- If the Count of the District Judge isclosed on the last day, the petition may be presented onthe next following day on which the said Court is open.

12. After a cursory reading of the above provisions, if we applythe ratio laid down by the Apex Court held in the case ofCommissioner of Customs and Central Excise Vs. Hongo India PrivateLimited and Another reported in (2009) 5 SCC 791, which says that inthe absence of any clause permitting the condonation of delay byshowing sufficient cause after the prescribed period, there iscomplete exclusion of Section 5 of the Limitation Act, I am of theview that there is no power to condone the delay after the expiry ofthe prescribed period of 45 days from the date of publication of theresult of the election under the Act. When it is well settled by theApex Court in the above mentioned case that it is the duty of theCourt to respect the legislative intent and by giving liberalinterpretation, limitation cannot be extended by invoking theprovisions of Section 5 of the Limitation Act, I am justified inholding that there is no power for condoning the delay in filingelection petition after the expiry of the time limit given underSection 258 r/w Rule 123(1) of the Tamil Nadu Panchayat (Election)Act and Rules, 1955. The Tamil Nadu Panchayat (Elections) Act, 1955,is a complete code by itself, which alone should govern the mattersprovided for by the Act. Further, the Tamil Nadu Panchayat Act,being a special Act, no provision therein does exclude the provisionsof Sections 4 to 24 of the Limitation Act by any express reference.Therefore, when there is no express reference to exclude theprovisions of the Limitation Act, the period of pendency of writpetition before the wrong court or any other delay cannot beexcluded. In other words, in the absence of any clause in thePanchayat Act permitting the condonation of delay, I hold that thereis a complete exclusion of Section 5 of the Limitation Act.

13. In the light of the above discussion, the present writpetition stands dismissed. No Costs. Consequently, connectedM.P.No.1 of 2010 is closed.

Sd/Asst.Registrar

/true copy/

Sub Asst.RegistrarrkmTo1. The Principal Election Officer (Panchayats), Tamil Nadu State Election Commission, 208/2, Jawaharlal Nehru Road, Arumbakkam, Chennai - 600 106.2. The District Election Officer/ District Collector, Thiruvarur.3. The Returning Officer for Ward No.17 of Thiruvarur District, Panchayat/District Revenue Officer, Thiruvarur.1 cc To Mr.S.Ayyathurai, Advocate, SR.915741 cc To M/s.Muthumani Doraisami, Advocate, SR.916971 cc To M/s.I.Paranthaman, Advocate, SR.922451 cc To The Government Pleader, SR.92326 Order inW.P.No.16460/2010KSK (CO)RH (6.1.11)