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Judgment
K. Kalyanasundaram, J.—This revision arises out of the order passed by the Principal District Judge, Namakkal in election OP No. 103 of 2011.
Brief facts of the case is as follows -
(i) On 17.10.2011, election was conducted for the post of President, Kuppuchipalayam Village Panchayat. The petitioner and the respondents 3 and 4 contested for the post of the president. The votes were counted on 21.01.2011. Out of 865 votes polled, the petitioner had secured 365 votes and the third respondent secured 361 votes. The election officer issued eight postal votes. After the postal votes were counted, the third respondent had secured totally 367 votes and she was declared as the President of the Panchayat.
(ii) The petitioner filed the election OP alleging that when the counting process was going on, an unidentified and unauthorised individual brought six postal vote covers and on verification, it was learnt that he does not belong to the postal department, so, the petitioner objected for opening the postal covers as it was not sent by postal or authorised person. However, the second respondent, without considering the objections, opened the postal covers and when the cover was opened, each ballot paper does not accompany the declaration, as provided under Rule 52 of the Tamil Nadu Panchayat (Election) Rules, 1995. It was further alleged that the postal covers did not reach the returning officer or his authorised agent on 16.10.2011, as per Rule 52 (2) of the Act; that Rule 61 (1) A(c) of the Rules was also not followed in this case and that the returning officer has committed material irregularity in counting invalid postal ballots which had vitiated the whole election process.
The second respondent filed a counter stating that the Panchayat Election was over on 17.10.2011 and the counting process was held as per the schedule, that 214 postal ballot papers were issued to the voters belonging to Mallasamudram block, out of which only 188 ballot papers were received by the office upto 6 p.m. on 20.10.2011 and on 20.10.2011, at 6 p.m., the postal ballot boxes was closed and sealed.
The second respondent has further stated that on 21.10.2011 at 6 a.m., in the presence of the returning officer, police officials and the candidates of various political parties, the sealed postal ballot boxes were brought to the counting centre. All the postal ballot papers were posted by the Salem Head Post Office and the postal receipts were received and kept in the office, that all the 214 ballot papers have been posted by the individual only by registered post and no ballot paper was received in person. On the counting date, he has carefully scrutinised the postal ballot papers one by one in the presence of all the candidates and their respective authorised agents, counted the valid postal ballots and announced the result. The second respondent has specifically denied the allegation that he received the postal ballot papers on the counting date and at 8 a.m.
The second respondent has further stated that out of the eight postal ballot papers issued to the voters, eight postal ballot covers were received by the office of the second respondent and on scrutiny, it was found that only six ballot papers were accompanied by Form 17 and they were taken into account and the results were announced according to the Rules. The third respondent has also filed a separate counter.
During the trial, the parties adduced oral and documentary evidence. The learned Principal District Judge, Namakkal dismissed the election petition. Aggrieved by the order, the present revision is filed.
Mr.N.Manokaran, learned counsel for the petitioner submitted that on 17.10.2011, election was held for the posts of President of Kuppuchipalayam Village Panchayat, Ward Councillor, Mallasamudram Union Councillor and District Councillor, Namakkal. The petitioner and the third and fourth respondents contested for the post of President on 21.10.2011 and the third respondent was declared as the President of the Panchayat. The petitioner challenged the election on two grounds, firstly the postal votes ought to have reached the returning officer one day prior to the date of election and secondly that every vote shall accompany declaration in Form 17, as provided under Rule 52 (2) of the Election Rules.
The learned counsel further submitted that the postal votes contained only single declaration in one cover which is against Rule 61 of the Rules. Exs.R6, R7 and R8 are Form 17, the other posts except the ward councillor, have been scored off, but in Ex.R2, form 17, nothing was scored off. It is contended that Exs.R2 and R3 were prepared to suit the case of the respondent.
Per contra, Mr.P.H. Arvindh Pandian, learned Additional Advocate General submitted that as per the 9.11.2 of the Regulation / Manual issued by the State Election Commission, the returning officer can receive the postal ballot covers till 6 p.m. before the date commencement of the counting, that while counting the votes the respondents 1 and 2 have followed the rules and by adopting hyper technical view and substantial justice cannot be defeated. The learned Additional Advocate General has relied upon a judgment reported in Vadivelu Vs. Sundaram and Others, AIR 2000 SC 3230 : (2000) 4 CTC 302 : (2000) 1 JT 408 Supp : (2000) 6 SCALE 719 : (2000) 8 SCC 355 : (2000) 3 SCR 642 Supp : (2000) AIRSCW 3664 : (2000) 7 Supreme 57 . In that case, a prayer was for rejection of the ballot paper on the ground that it has not contained the signature of the presiding officer, though it contained the distinguishing mark of the polling station. Rule 63 (1) (h) deals with the rejection of ballot papers provides that if the ballot paper does not bear both the distinguishing mark and / or the signature of the presiding officer. It was observed in that case that due to some mistake or inadvertence, the presiding officer did not sign these ballot papers and the absence of signatures under the circumstances could not invalidate the ballot papers. In my considered view, the judgment relied upon by the learned counsel for the respondent does not have bearing on the facts of this case.
It is seen that the petitioner has filed the election petition specifically stating that the respondents have not followed Rule 52 (2) of Tamil Nadu Panchayats (Elections) Rules, 1995 which would run thus -
52 (2) On receiving the ballot paper, the elector on election duty shall record his vote by making a tick mark on the ballot paper against the name/s or symbol/s of the Candidate/s to whom he intends to vote. The mark may be made anywhere in the compartment within which the symbol or name of such Candidate is printed on the ballot paper. The elector shall sign a declaration in Form 17. He shall then enclose the ballot paper in an envelope provided for the purpose and stick the envelope and secure it by seal or otherwise. He shall then enclose the envelope containing the marked ballot paper in an outer cover provided for this purpose, as well as the election duty certificate and the declaration aforesaid and send it to the Returning Officer by post or by messenger so as to reach him or the person authorised by him before 5.00 p.m. on the day before the poll.
The Rule mandates that elector shall sign a declaration in Form 17 and then enclose the ballot paper in an envelope provided for the purpose and stick the envelope and secure it by seal or otherwise. He shall then enclose the envelope containing marked ballot paper in an outer cover provided for this purpose, as well as the election duty certificate and the declaration aforesaid and sent it to the returning officer by post or by messenger so as to reach him or the person authorised by him before 5.00 p.m. on the day before the poll. RW1 has also admitted in his evidence that the postal votes should reach the returning officer one day prior to the poll.
In the counter filed by the respondents 1 and 2 and also in the evidence, RW1 has admitted that the postal covers had received one day prior to the counting. However, the respondents have relied on the manual / regulation issued by the Election Commission to contend that the respondents can receive the ballot papers till 6.00 p.m. to the previous day of counting. When Rule 52 mandates that the postal ballots are to be received before the date of poll at 6.00 p.m., the respondents are precluded from receiving the ballot papers till 6.00 p.m., on the previous day of counting.
Further, the petitioner has specifically alleged that the declaration in Form 17 was not enclosed alongwith the postal ballot papers. In Exs.R6 to R8, the electors have scored off the names for whom they cast their votes but in Ex.R2, the electors Mrs. Malliga and Mr. Sugavanam have not scored off the post for which they are casting their votes. Therefore, I find force in the contention of the learned counsel for the petitioner.
In view my findings supra, the order passed by the Principal District Judge, Namakkal in Election O.P. No. 103/2011 is set aside. In the result, this Civil Revision Petition is allowed. No costs.