IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 06.01.2012 Coram : THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA W.P.No.26308 of 2011 & M.P.No.1 of 2011 M.Subbaiyan .. Petitioner v. 1.The Chief Election Commissioner of Tamil Nadu, No.1081, Jawaharlal Nehru Road, Opp. To CMBT., Arumbakkam, Chennai-600 106. 2.The District Collector/District Election Officer, Tiruvarur District, Tiruvarur. 3.The Revenue Divisional Officer, Mannarkudi Revenue Division, Mannarkudi Taluk, Tiruvarur District. 4.N.Gunasekaran, Deputy Registrar of Co-operatives (Returning Officer), Public Distribution System, Tiruvarur. 5.R.Sekar ... Respondents Writ petition filed under Article 226 of the Constitution of India praying to issue of Writ of Mandamus to direct the fourth respondent to declare the petitioner as a successful candidate for ward No.V, Mannargudi Panchayat Union, Tiruvarur District for the post of Ward Councilor by issuing certificate declaring him as a successful candidate for the localbody election held on 19.10.2011. For petitioner : Mr.C.D.Johnson For respondents : Mr.B.Nedunchezhiyan for R1 Mr.R.Vijayakumar Additional Government Pleader for R2 & R3 `` No appearance for R4 & R5 ORDER
(Order of the Court was made by D.MURUGESAN,J.) The writ petition is filed to issue a Writ of Mandamus directing the fourth respondent to declare the petitioner as a successful candidate for ward No.V, Mannargudi Panchayat Union, Tiruvarur District for the post of Ward Councillor by issuing certificate declaring him as a successful candidate for the local body election held on 19.10.2011.
2. Inspite of the notice, the fifth respondent was absent.
3.The short question that arises for our consideration is as to whether the election to the Ward No.5 of Mannargudi Panchayat Union held on 19.10.2011, wherein the fifth respondent had been declared as elected, is invalid.
4. Before we dwell upon the rival contentions, being put in caution, we may refer that the jurisdiction of this Court under Article 226 of the Constitution of India to interfere in the election matter is restricted as such disputes could be resolved by an unsuccessful candidate invoking provisions of Section 258 of the Panchayat Act, however, in the event, the unsuccessful candidate, who approaches the Court, satisfies with unassailable documents, which are not disputed by the respondents themselves, the petition can be entertained and appropriate orders can be passed.
5. Pursuant to the election held on 19.10.2011, the counting of votes were taken place on 21.10.2011 and it went on upto the morning on 22.10.2011. The grievance of the petitioner is two fold. Even on 22.10.2011, when the results were posted in the website, the petitioner had been shown as elected with 945 votes as against the next candidate, who had secured 927 votes. Further, declaration form was issued in favour of the said candidate by name R.Sekar, who has been impleaded as fifth respondent, as has been elected. When once the declaration was made, the petitioner is entitled for the certificate in the required form and consequently, would be entitled to function as a Member of the Ward.
6. In response to the above, a counter affidavit has been filed, wherein it is admitted that the counting of votes in Ward No.5 in question commenced late in the evening of 21.10.2011 and it went on even after 12 noon and ended on 22.10.2011. As against the claim of the petitioner that certificate in the required form was issued to the fifth respondent only on 24.10.2011, the learned Additional Government Pleader has produced the records showing that such certificate was issued in favour of the fifth respondent on 21.10.2011. Even though the claim of the petitioner that certificate was issued in favour of the fifth respondent only on 24.10.2011 could not be accepted as against the claim of the respondents, the fact remains that even according to the respondents, the certificate was issued on 21.10.2011 but whereas in the counter affidavit of the respondent himself, it is admitted that the counting of votes continued even on 22.10.2011. In such event, the certificate could not have been issued even on 21.10.2011. Hence the contention of the respondents that the fifth respondent has been elected validly and has been issued with the certificate in the required form cannot be accepted.
7. This takes us to the next question as to whether the petitioner had been validly elected, so as to entertain this writ petition.
Admittedly, at the time when the results were posted on the web site on 21.10.2011, the petitioner was shown as having secured 945 votes as against the next candidate viz., the fifth respondent having secured only 927 votes. In the counter affidavit of the first respondent-State Election Commission, it is stated that a mistake had crept in when uploading the details in the web site, wherein the petitioner was shown as having been elected. Therefore having noticed, an enquiry was conducted by the officials, who have committed the said mistake had been ousted from service. Placing reliance on the counters, both the respective learned counsel appearing for the State Election Commission as well as the Returning Officer would submit that the petitioner cannot seek for a declaration that he has been elected based on such details posted on the web site, which was due to the mistake of the officials. We find every force in the said contention. When there is a dispute regarding the posting of the details in the web site, this Court would not be justified notwithstanding and declaring the petitioner as having been elected. Accordingly, we only dispose of the writ petition by declaring the election of the fifth respondent as invalid and the first respondent shall conduct a fresh election notifying fresh election in the said ward.
8.The writ petition is allowed to the extent indicated above. No costs. Consequently connected miscellaneous petition is closed.
(D.M.,J.) (P.P.S.J.,J.) 06.01.2012 Index:Yes Internet:Yes raa 1.The Chief Election Commissioner of Tamil Nadu, No.1081, Jawaharlal Nehru Road, Opp. To CMBT., Arumbakkam, Chennai-600 106. 2.The District Collector/District Election Officer, Tiruvarur District, Tiruvarur. 3.The Revenue Divisional Officer, Mannarkudi Revenue Division, Mannarkudi Taluk, Tiruvarur District. D.MURUGESAN,J. and P.P.S.JANARTHANA RAJA, J. raa W.P.No.26308 of 2011 06.01.2012