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Courts Cannot Mechanically Relegate Parties To File Election Petition When There Is Subversion Of Election Process By Adopting Illegal Means: Madras High Court [Read Order]

LIVELAW NEWS NETWORK
31 Oct 2020 4:26 AM GMT
Courts Cannot Mechanically Relegate Parties To File Election Petition When There Is Subversion Of Election Process By Adopting Illegal Means: Madras High Court [Read Order]
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"The Election process even for Panchayats must be recognized and given the status of the Elections conducted for forming the Government in the Centre or the State. A local body Election has been given such a status by the Constitution itself. Therefore, any interference that takes place in a free and fair Election conducted for the local body, must be taken very seriously by this...

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"The Election process even for Panchayats must be recognized and given the status of the Elections conducted for forming the Government in the Centre or the State. A local body Election has been given such a status by the Constitution itself. Therefore, any interference that takes place in a free and fair Election conducted for the local body, must be taken very seriously by this Court," held the Madras High Court on Wednesday.

The remarks were made by Justice N. Anand Venkatesh while disposing of a writ petition filed by R. Jayalakshmi, whose election to the post of Village Panchayat President, Kumalankkulam Village in Cuddalore District was declared as null and void by the State Election Commission on account of confusion in allotment of election symbol.

Whereas the Respondent-authorities had contested the maintainability of a writ petition on this issue on the ground that the petitioner has an alternative remedy of filing an Election Petition under Section 258 of the Tamil Nadu Panchayats Act, 1994, the Court held,

"This Court cannot mechanically relegate the parties to file an Election Petition when the monstrosity of the situation apparently establishes subversion of Election process by adopting illegal means. Those are exceptional cases where this Court has to step in and exercise its jurisdiction under Article 226 of the Constitution of India and prevent such subversion of Election process. The case on hand clearly falls under this category. Therefore, the plea taken on the side of the respondents regarding the alternative remedy available to the petitioner under the Panchayat Act, is held to be not sustainable."

Background

The Petitioner, R. Jayalakshmi, was allotted "Auto Rickshaw Symbol" by the Assistant Election Officer and another contestant, Vijayalakshmi (Respondent No. 4) was allotted "Lock And Key Symbol".

After polling, when counting of votes was completed in January 2020, the Election Officer declared that the "Auto Rickshaw Symbol" had obtained 2524 votes and "Lock And Key Symbol" had obtained 1478 votes and thereby the Petitioner was declared as the elected candidate.

However, sometime later it was announced that there had been a discrepancy in the allocation of Symbol in Form 4 and Form 9 by the Assistant Election Officer inasmuch as Form 9 showed that the 4th respondent had been allotted the "Auto Rickshaw Symbol" and whereas Form 4 showed that the same Symbol had been allotted to the Petitioner.

After conducting an enquiry in the matter, the State Election Commissioner came to a conclusion that the Election was conducted in violation of the rules and therefore, the Election was declared to be null and void.

Findings

Rejecting the ground of confusion in allotment of election symbols, the Court noted,

"The candidates did not have any doubt whatsoever with regard to the Symbol that was allotted to them. The signature of the petitioner and the fourth respondent found against the Symbol allotted to them in Form 4, clearly establishes the same…

…Even as per the admitted case of the fourth respondent, the Symbol that was allotted to her was "Lock And Key". The pamphlets issued during the Election by the fourth respondent also establishes the fact that she has campaigned for the Election only under "Lock And Key Symbol". No one had any doubts with regard to the Symbol that was allotted to the petitioner and the fourth respondent and the campaigning had also taken place for the Elections under the same Symbol and the voters were also aware regarding the Symbol that was allotted to the petitioner and fourth respondent."

The Court went on to remark that the confusion actually arose only after the announcement of the results on 02.01.2020, wherein the Election Officer had declared that the candidate who stood under the "Auto Rickshaw Symbol" had poled the maximum votes and won the Election.

"That is where all of a sudden, some material alterations have been attempted to be made in Form 9. This alteration is now sought to be taken advantage of and there is an attempt to create confusion as if, the 4th respondent was allotted the "Auto Rickshaw Symbol" and the petitioner was allotted "Lock And Key Symbol". This is a clear after thought and an apparent attempt made to dislodge the Election process for reasons best known to the official respondents."

It added,

"It is apparent from the materials placed before this Court that there was a clear interference in the Election process from some unknown hand, who wanted the fourth respondent to be declared as the successful candidate and not the petitioner. When this became legally impossible due to the overwhelming materials, the first respondent has chosen to cancel the very Election itself by pointing out some discrepancy in the Forms. The materials placed before this Court shows that it is not a case of any discrepancy in Forms but, it is a clear case of an attempt being made to materially alter statutory forms and subvert the entire Election process."

The Respondent-authorities had questioned the very maintainability of the Writ Petition on the ground that the petitioner has an alternative remedy of filing an Election Petition under Section 258 of the Tamil Nadu Panchayats Act, 1994 and that the High Court cannot entertain a Writ Petition in view of the explicit bar imposed by Article 243-O of the Constitution of India.

Rejecting this argument, the Bench observed,

"This Court is fully aware about the limitations imposed upon this Court when it comes to an Election dispute.

In the present Writ Petitions, this Court is not dealing with an Election dispute between the petitioner and 4th respondent and this Court is only testing the legality of the Impugned Order passed by the 1st respondent declaring the Election as null and void, after the Elections were over and the results were also declared."

In view thereof, the High Court set aside the State Election Commissioner's order declaring the election process void and directed the Commission to declare the Petitioner as the elected candidate for the post of Village Panchayat President, Kumalankulam Village, within a period of one week.

Case Title: R. Jayalakshmi v. State Election Commissioner & Ors.

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