This writ petition is for a direction against the first respondent to ensure free and fair election in Ward No.18 of Alandur Municipality by providing comprehensive police protection with video coverage using Photo Electoral Rolls for the Municipality Bye Election to be conducted on 07.10.2009.
2. It is seen that the petitioner, who is contesting in the Municipality Bye Election in Ward No.18 of Alandur Municipality to be held on 07.10.2009 has made a representation to the first respondent on 25.9.2009 by which, he has requested the first respondent to provide police protection for the purpose of conducting of the election apart from providing video coverage. He has also requested to use photo electoral roll as it was done in the Parliamentary Elections as well as Legislative Assembly Elections previously. The first respondent has passed an order dated 01.10.2009 stating that using of photo electoral roll is followed only in the Parliamentary/Legislative Assembly Elections and not in the Municipal Elections. It is also stated in the said order that electoral identity card number is provided in the electoral roll. Therefore, the first respondent has made clear as it is seen in the said order dated 01.10.2009, for the Municipal Elections, the electoral roll as used in the Assembly and Parliamentary elections will not be used.
3. The case of the petitioner is that it is to ensure a fair election and to avoid any impersonation at the time of polling, using of photo electoral roll is a must. That apart, it is the case of the petitioner that following of the electoral roll as per the Assembly Elections and Parliamentary Elections is a mandatory duty on the part of the first respondent as per the District Municipalities Act and also as per the relevant rules relating to the Tamil Nadu Panchayat Elections etc.
4. Mr.G.Rajagopalan, learned senior counsel appearing for the petitioner by relying upon Section 44 of the District Municipalities Act would submit that the first respondent is bound to use the photo electoral roll as it was used in the Tamil Nadu Legislative Assembly and revised in accordance with the provisions of law and inasmuch as for the Tamil Nadu Legislative Assembly Election, the electoral roll was in the form of photo electoral roll, it is the duty on the part of the first respondent to use the same for the Municipality Bye-Election also. He would also refer to the rules framed in 2006 called as Tamil Nadu Town Panchayats, Third Grade Municipalities, Municipalities and Corporations (Elections) Rules, 2006, in which Rule 15 contemplates similar provisions as that of Section 44 of the District Municipalities Act and therefore, a combined reading of the provisions shows that it is the mandatory duty on the part of the State Election Commission to use the Electoral List as it was used in the Assembly Elections for the Municipality Election also. The letter of the first respondent dated 01.10.2009 makes it clear that the first respondent has made up its mind not to use the electoral roll with photo identity as it was used in the Assmebly Elections by taking a stand that the same is not used for the Municipality Elections, which according to the learned senior counsel is in violation of the provisions of the Act as well as the provisions of the Constitution of India especially Article 243-k (3) of the Constitution of India.
5. Per contra, Mr.I.Paranthaman, learned counsel appearing for the first and third respondents by producing various documents to substantiate his contention would submit that even though under the letter dated 01.10.2009 the first respondent has taken a stand that the photo electoral roll will be used only for the purpose of the Assembly Elections and Parliamentary Elections, what was intended to be informed by the said letter was that the first respondent has clearly stated that there was no possibility for impersonation inasmuch as the electoral roll which is to be used for the purpose of Municipal Election, which may not contain the photo identity, but it contain the identity card numbers and therefore, there is no possibility for impersonation during the time of election. Therefore, according to him, only the photo will not be there and by the identity card number, it is always possible for the electoral officers to avoid any impersonation, which may be attempted to. It is his further submission that in fact the first respondent is using the Tamil Nadu Legislative Assembly Electoral Roll except when it relates to the Photo Electoral identity. Therefore, there is a compliance of Section 44 of the District Municipalities Act as well as Rule 15 of the 2006 Rules as stated above.
6. It is his further submission that the electoral list either for parliamentary election or for State Assembly elections are prepared by the Election Commission of India and the list is not prepared ward wise and it is very difficult for the Electoral officials for conducting election in the Municipal Council to segregate the voters. According to the learned counsel when the large number of voters are available for the Legislative Assembly, it is only a few among them are the voters for the Municipal Elections and therefore, from among the combined list prepared by the Election Commission of India during Assembly Election, it is difficult to segregate since there is lack of officials. Hence, it is not possible at the time of election to have the electoral roll with photo identity card to be compared. It is also his further contention that the State Election Commission is not having a software facility for the purpose of preparing a separate list of voters for the Municipal Elections.
7. Heard the learned senior counsel appearing for the petitioner and the learned standing counsel appearing for respondents 1 and 3 and the learned Additional Government Pleader appearing for respondents 2, 4 and 5 and perused all the relevant records.
8. As far as the providing of police protection for conducting election to be held on 07.10.2009 apart from video coverage, learned counsel for respondents 1 and 3 would submit that steps have been taken for the purpose of providing adequate police protection for conducting elections on 07.10.2009 and steps are also taken for video coverage in respect of those Municipalities which are treated as sensitive in nature.
9. The other question to be decided is as to whether the stand taken by the first respondent that for the present Municipal election to be held on 07.10.2009, the electoral roll which has been published for the Assembly Elections to be used without photo identity is correct.
10. In this regard, it is relevant to refer Section 44 of the District Municipalites Act. Before adverting to the provisions of the District Municipalites Act, it is relevant to refer to Article 243-k of the Constitution of India, which provides elections to Panchayat. Article 243-k reads as follows:
"243 k Elections to the Panchayats (1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.
(2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may be rule determine:
Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.
(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).
(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats.
11. Sub-clause(3) of the above said Article enables the Governor as per the request of the State Election Commission to make available sufficient number of staffs for the purpose of discharging the functions conferred on the State Election Commission. It is seen that the petitioner has made a representation on 25.9.2009 asking for the use of the Photo Electoral Roll for the Municipal Election to be held on 07.10.2009. If really the first respondent felt certain inconvenience in respect of inadequacy of staffs, by virtue of the constitutional provisions, he could have certainly approached the Governor for providing adequate staff so as to see that the provisions of law in respect of the conducting of the election is followed scrupulously so as to impose confidence on the public regarding the fairness of the election to be conducted. That has not been done by the first respondent.
12. In such view of the matter, I am of the considered view that the contention of the learned counsel for the first and third respondents that due to inadequacy of staffs, it is not possible to segregate the voters along with photo identity from the electoral roll given by the Election Commission of India for the State Assembly Election is not tenable. When it is the constitutional duty on the part of the first respondent to conduct election, this sort of excuses cannot be accepted.
13. Section 44 (1) of the Tamil Nadu District Municipalities Act 1920 reads as follows:
44. (1) The electoral roll of the municipality shall be the same as the electoral roll of the Tamil Nadu Legislative Assembly prepared and revised in accordance with the provisions of law for the time being in force in a municipality and shall be deemed to be the electoral roll for such municipality for the purpose of this Act and that no amendment, transposition or deletion of any entry in the electoral roll of the Tamil Nadu Legislative Assembly made after the last date for making nominations for election in any municipality and before the notification of the result of such election, shall form part of the electoral roll for such election, for the purpose of this section."
14. The above section makes it clear in uncertain terms that the electoral roll, which has to be used for the election of Municipalities, which includes Panchayats etc. shall be the electoral roll prepared and revised in accordance with the provisions of law and used for the Tamil Nadu Legislative Assembly Elections. It is the admitted case that the electoral roll used for the Tamil Nadu Legislative Assembly Elections, which was prepared by the Election Commission of India for the purpose of previous Assembly Elections in the State of Tamil Nadu, contain photo identity. When that is the case, it is not open to the first respondent now to contend that the Electoral Roll as it was used in Tamil Nadu Legislative Assembly is used, but without photo identity. That is not the purport of Section 44 of the Act. The purport of Section 44 of the Act is to certainly use the list of electoral roll, which should be in the form given by the Election Commission of India during the previous Tamil Nadu Legislative Assembly Elections. When in the previous Tamil Nadu Legislative Assembly Election, the Election Commission of India has prepared and amended the electoral roll along with photo identity card, certainly as per Section 44 of the Act, the first respondent is bound to use the said electoral roll with photo identity. The rules framed as per the Municipal Act as well as the Corporation Act in the form of Tamil Nadu Panchayats, Third Grade Municipalities, Municipalities and Corporations (Elections) Rules 2006, in Rule 15, while explaining about the preparation of electoral rolls, again reiterated the similar wordings of Section 44 of the District Municipalities Act. Rule 15 reads as follows:
"15. Preparation of electoral roll (1) The electoral roll of a ward of a Town Panchayat or Third Grade Municipality or Municipality or Corporation, as the case may be (hereinafter referred to as the roll) shall be prepared with reference to the qualifying date by the Electoral Registration Officer, by integrating the particulars in the various entries available in such part or portion thereof of the current electoral roll of the Tamil Nadu Legislative Assembly and the various amendments issued to it, from time to time, as they relate to the ward of a Panchayat Town or Transitional Area or Municipality or Corporation or portion thereof.
(2) The roll shall be divided into convenient parts which shall be numbered consecutively.
(3) There shall be a separate part or parts of the rolls for each ward of a Panchayat Town or Transitional Area or Municipality or Corporation, as the case may be.
(4) The number of names included in any part of the roll shall not ordinarily exceed two thousand four hundred and in case where it exceeds two thousand four hundred, it shall be prepared in more than one part in a convenient manner, in accordance with the directions issued by the State Election Commission, from time to time.
(5) The rolls of all wards so prepared, published and put together shall form the electoral roll of the Town Panchayat or Third Grade Municipality or Municipality or Corporation.
Explanation The electoral roll for a Town Panchayat or Third Grade Municipality or Municipality or Corporation need not be prepared or amended separately once the electoral rolls of all the constituent wards have been prepared or amended under rule 19.
(6) The electoral roll shall be prepared before every ordinary or casual election."
15. It is true that under Rule 15(3) of the above said Rule includes publication and preparation of Electoral roll as a separate part in respect of each of the ward of the Panchayat, Town or Transitional Area or Municipality or Corporation. The separate roll for the Municipality and Corporation as stated in Rule 15(3) is subject to
Section 44 of the District Municipalities Act. Therefore, the combined reading of
Section 44 of the District Municipalities Act and Rule 15 of the 2006 Rules as stated above makes it clear that while preparing and publishing the electoral roll for Panchayat Elections, it is the duty on the part of the first respondent State Election Commission to follow the electoral list prepared by the Election Commission of India for the previous Tamil Nadu Assembly Election, which is in the form of photo electoral roll and while preparing the list for each of the ward, etc., certainly, it is the duty of the first respondent to follow the said photo electoral roll. Simply because due to the shortage of time and persons, it is not possible to divide the combined electoral roll given by the Election Commission of India for the purpose of each wards, itself cannot be a ground for the purpose of stating that the provisions of law need not be followed. Merely the statement made by the learned counsel on behalf of the first and third respondents that steps have been taken to avoid manipulation or impersonation, since the electoral list without photo identity contains the voter identity number and therefore it is possible for the electoral officer to avoid impersonation at the time of poll is not a ground to say that the provisions of
Section 44 can be violated.
16. In such view of the matter, it is not possible to accept the contention of the learned counsel for the first and third respondents that the Tamil Nadu Assembly Electoral Roll is being followed on the factual matters of the case. Now that the election is scheduled to be conducted on 07.10.2009. Hence, it may not be possible for the first respondent in this last minute to prepare a separate list by segregating the names of voters for each ward with photo identity. The best method to be used at this time is that the electoral officials should be provided with the electoral roll with photo identity along with the electoral roll, which has been prepared by the first respondent for the present election and compare the same at the time of polling.
17. Accordingly, the writ petition is disposed of with a direction to the first respondent to use the photo electoral roll issued by the Election Commission of India, which has been used in the previous Tamil Nadu Legislative Assembly Election during the time of Municipal election to be conducted on 07.10.2009 apart from providing adequate police protection for the purpose of smooth conducting of election and effecting video coverage, for which course learned counsel for the first respondent submits that steps are taken for that purpose. No costs. Consequently, M.P.Nos. 1 and 2 of 2009 are closed.
sl To
1. The Secretary, Tamil Nadu State Election Commission, No.208/2, Jawaharlal Nehru High Road, Arumbakkam, Chennai
2. The District Collector, Kancheepuram District, Tamil Nadu.
3. Municipal Commissioner cum Returning Officer, Alandur Municipality, Chennai 600 061.
4. Director General of Police (Law & Order), Kamarajar Salai, Chennai, Tamil Nadu.
5. Commissioner of Police, Sub Urban Commissionarate, St. Thomas Mount, Chennai