(Judgment of the Court was made by F.M.IBRAHIM KALIFULLA, J.) This appeal arises out of an order of the learned single Judge dated 14.10.2009 passed in W.P.(MD) No.9755 of 2009, in and by which the learned Judge declined to interfere with the election process initiated pursuant to the notification dated 18.9.2009 issued by the first respondent for holding the election for the post of Panchayat President of Panagudi Selection Grade Town Panchayat, Tirunelveli District. According to the appellant, there was a casual vacancy which arose due to the setting aside of the election of one of the ward members, namely, Thiru T.Ashokan, on the ground that he was disqualified to hold the post, that unless and until the election for the said ward is held and the successful councillor takes up the position, the election to the post of President cannot be held. The learned Judge, after a detailed consideration of the various submissions, took the view that the provisions relating to the holding of election for the post of President in comparison with the provisions relating to the holding of election for the ward councillor in respect of a casual vacancy, if read together, do not support the stand of the appellant. The learned Judge also placed reliance upon the decision of this Court in M.K.Ravutha Gounder v. The Regional Inspector of Municipal Councils and Local Boards, Coimbatore, 1958 (2) MLJ 414, where, in a more or less identical situation, such a contention was repelled by a learned single Judge of this Court.
2.We heard Mr.R.Anand, learned counsel appearing for the appellant. In the course of his submissions, the learned counsel submitted that under section 8(4) of the Tamil Nadu District Municipalities Act, 1920, it is specified that a casual vacancy in the office of councillor should be filled up in a casual election and that such election should take place as soon as may be after the occurrence of the vacancy, that as against the said provision relating to filling up the post of a casual vacancy, in the case of election to fill a casual vacancy for the post of President under rule 99(4) of the Tamil Nadu Town Panchayats, Third Grade Municipalities, Municipalities and Corporations (Elections) Rules, 2006, it is stipulated that such meeting for filling up of the post should be convened within sixty days of the date of the occurrence of such vacancy and that by reading both the provisions together, the set of expression "as soon as may be" contained in section 8(4) of the Tamil Nadu District Municipalities Act should be given more credence, that unless and until such vacancy is filled up at the earliest point of time, the election to the post of a casual vacancy of President of the town panchayat should not be held.
3. We bestowed our serious consideration to the contentions so raised on behalf of the appellant. On a reading of the rules relating to the election for the post of President as prescribed under the Tamil Nadu Town Panchayats, etc. (Elections) Rules are concerned, under Part VIII of the said rules, rules 94 to 115 have been set out. In very many rules in the said Part, thrust is given to the expression "members present", for the purpose of holding of election for the posts of Chairman, Vice Chairman, Members of the Statutory Committee, Chairman of Wards Committee, place of meeting for the election, declaration of results, procedure of election, arrangement of voting compartment, the placing of ballot boxes, etc. We find that, in particular, under rule 99(4), it is specifically stipulated that in the case of an election to fill a casual vacancy to the post of President, such meeting should be convened within sixty days from the date of occurrence of such vacancy. In the only explanation contained in the said rule, it is again stated that the expression "members" referred to in the rule and in the other rules 100 to 115, shall mean the elected councillors. A reading of the above provisions makes it abundantly clear that it is mandatorily required that the State Election Commission should convene the meeting for holding the election to fill a casual vacancy for the post of President within sixty days from the occurrence of such vacancy. The apparent purport seems to be that the post of President should not be allowed to remain vacant for an indefinite period having regard to the responsible functions to be discharged by the President of the town panchayat. The said position is further more reinforced by the specific provisions contained in rule 102, which makes it further clear that in the case of an election under Part VIII, where there is a contest, the votes of the members present at the meeting should be taken by secret ballot in the manner laid down in the subsequent rules. The said rule, therefore, makes the position very clear that for the purpose of holding the election for the post of President due to a casual vacancy, it is not necessary that the election for all the wards should be complete and that all such members should be present in the meeting while holding the election and then alone, the election can be held. In other words, what is required under rule 102 that if out of very many members of the various wards of a town panchayat, the members who are present at the meeting exercise their votes in a secret ballot in the event of any contest is held, that would be sufficient compliance of the statutory requirement.
4. As far as the reliance placed upon section 8(4) of the Tamil Nadu District Municipalities Act is concerned, the said section can have no application when it comes to the question of holding of election for the post of President, which is exclusively covered by a set of rules as prescribed under the Tamil Nadu Town Panchayats etc., (Elections) Rules. In our considered opinion, the prescription contained in section 8(4) will have to be confined to the holding of election in respect of a casual vacancy in the office of councillor, for which the mandate is that such election should take place as soon as may be after the occurrence of the vacancy. We do not find even a remote connection of the said provision when it comes to the question of holding the election for the post of President as prescribed under Part VIII of the Tamil Nadu Town Panchayats etc., (Elections) Rules. The learned counsel wanted to rely upon a decision of the Hon'ble Supreme Court in Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel and others, (2006) 8 SCC 200. That was a case where in respect of an election to the post of President, two of the members were prevented from casting their votes by launching a prosecution, pursuant to which those two persons were arrested for an offence under the Copyrights Act just a few minutes before the election meeting. When the said election was challenged before the High Court, the High Court found that the detention of those two councillors was with a sole intention of preventing them from attending the meeting convened for election of President and Vice President of the municipality. The High Court, therefore, set aside the election on that ground. Dealing with the said situation, the Hon'ble Supreme Court also took the view that when a Court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is, nevertheless, stated that it is trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision. Ultimately, in paragraph 23, the Supreme Court held as under:- "We have no hesitation in holding that the detention of the two councillors a few minutes before the election meeting was a relevant factor which ought to have been taken into account by the Presiding Officer to decide whether to continue with the election or to postpone it and call the meeting on some other day in terims of Rule 10. Failure to do so not only offends against procedural propriety, it makes the decision to go ahead with the election meeting perverse and irrational, a facet of unreasonableness, warranting interference under
Article 226 of the Constitution. In this view of the matter, we are of the opinion that the High Court has not committed any error of law and/or jurisdiction in setting aside the election of the appellant as President of Anand Municipality."
5. As compared to the facts involved in that case, in the case on hand, as on date, there is no impediment for the appellant, who is a sitting councillor, to participate in the election and also can either contest or simply cast his vote in the election in the event of contest by anybody else. Therefore, we do not find any scope for violation of any of the provisions of either the Act or the Rules relating to the election of the President. The contention of the learned counsel for the appellant that there would be a prejudice caused to anyone who may get elected in the post of casual vacancy of a councillor is far remote for the appellant to raise in this proceeding, more so when the rule relating to the election to the post of President makes it very clear that such election should be by the members who are present, who alone can cast their votes. Inasmuch as we have held the provision contained in section 8(4) does not in any way impinge upon the provisions relating to the holding of election under the rules for the post of President in a casual vacancy, the contention of the appellant does not merit any acceptance.
6. As far as the decision relied upon by the learned Judge is concerned, we find that that was a case where some others who wanted to stake their right in an election as members came forward to challenge the election to the post of President on the ground that their right in the event of getting elected as members would be defeated if the election for the post of President is allowed to take place. Dealing with the said situation, this Court has held as under in M.K.Ravutha Gounder's case, 1958 (2) MLJ 414 (supra):
"The next contention on behalf of the petitioner was that his contingent right as a member of the Panchayat or at least the right of the three members who may be elected ultimately would be prejudiced if the election of the President is to take place in advance of the filling up of the three seats. It is rather difficult to appreciate this contention. The right to stand or to contest an election is neither a fundamental nor a common law right but one which depends for its origin and exercise on the statute. I have held already that the Panchayat Board as at present constituted has a right to function; a fortiori it can elect its President under Section 21 from amongst its members. The petitioner is not yet a member and neither he nor the three members who may come in later can have any present right to stand for the election for the office of the President. There is therefore no deprivation of any right of the petitioner or of the persons who may be elected later."
We, therefore, affirm and approve the said ratio of the learned Judge and while applying the said ratio to the facts of this case, we are of the firm view that the election as scheduled under the notification impugned in the writ petition cannot be interfered with.
7. Further, we find from the provisions of the Act, namely, under Section 12, it is stipulated that every council should elect one of its members to be its chairman and such chairman should be deemed to have vacated his office only on the expiry of his term of office as a councillor on his otherwise ceasing to be the councillor, unlike the vacancy which is to be filled up when such vacancy arises in a casual manner like the one where the elected president ceases to hold the post by virtue of his disqualification. In the said situation, the rules prescribed under Part VIII cover the field and therefore, the non-filling up of the post of the councillor on the councillor ceasing to be the councillor due to his disqualification, can have no bearing for holding the election for the post of President in a casual vacancy. Looked at from any angle, we do not find any impediment for the first respondent to hold the election for the post of President of the respondent-town panchayat in the present juncture, which would be in accordance with the prescribed rules as provided under Part VIII of the Tamil Nadu Town Panchayats etc., (Elections) Rules, 2006.
8. The other contention of the learned counsel for the appellant was that the parties who wanted to get themselves impleaded were represented by one of the ward councillors, who made a statement that eleven of those petitioners in that miscellaneous petition have confirmed their support to him for the post of President and thereby the secrecy clause relating to the holding of election is defeated. We are unable to appreciate the said contention. Merely because some parties who wanted to get themselves impleaded in the writ petition, made an averment at the instance of the person who sworn to the affidavit that he has got the support from some of the other members and thereby he has got good chance of success in the election, it cannot be taken as sacrosanct to hold that on that basis the secrecy clause in the holding of the election is lost. Therefore, we do not find any force in the said submission of the learned counsel for the appellant.
9. Having regard to our above conclusions, we do not find any merit in this writ appeal. The writ appeal fails and the same is dismissed. It is stated before us that by virtue of the interim orders which prevailed during the pendency of the writ petition, the notification impugned in the writ petition was cancelled and that a fresh notification has now been issued proposing to hold the election for the post of President on 2.11.2009. In the light of the fact that the writ appeal stands dismissed and the order of the learned Judge is confirmed, the respondents are at liberty to hold the election on 2.11.2009 as scheduled. Consequently, M.P.(MD) No.1 of 2009 is also dismissed. There shall be no order as to costs.
ss To
1. The Executive Officer cum Presiding Officer Panagudi Selection Grade Town Panchayat Tirunelveli District
2. The District Collector cum District Election Officer Tirunelveli District Tirunelveli
3. The State Election Commissioner Office of the State Election Commission Vadapalani Chennai