(Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records relating to the impugned order in proceedings e.f.m3 /1118/11 dated 14.05.2012 and to quash the same as illegal and arbitrary and consequently, to direct the respondents to conduct the fresh enquiry as per the direction of this Court.)

ORDER

1. In this writ petition, the petitioner who is a ward member of T.Punaivasal Village Panchayat, Kamuthi Panchayat Union, Ramanathapuram District, seeks to set aside the impugned order, dated 14.05.2012, passed by the Returning Officer, Kamuthi.

2. The said impugned notification was issued on the basis of the communication received from the State Election Commissioner, dated 11.05.2012 and a direction was issued to conduct election in respect of the vacant posts on 22.05.2012. Hence, the members of the panchayat are informed about the election.

3. The petitioner on receipt of the said impugned communication filed the present writ petition contending that he has already been elected as Vice-President of T.Panaivasal Village Panchayat in the election held on 30.11.2011 by the 4th respondent on the directions of the 3rd respondent and therefore, the impugned notification for the said post once again issued is unwarranted, arbitrary and violation of the provisions of the Tamil Nadu Panchayats Act, 1994 and Article 14 of the Constitution. Under Section 44 of the Tamil Nadu Panchayats Act, a fresh election can be conducted only if no Vice-President was elected. The petitioner was elected and declared as Vice-President and the 4th respondent also furnished the declaration of the result of the election held on 30.11.2011. Therefore, the present impugned notification is unwarranted. Though this Court in W.P.No.2169 of 2012 vide order dated 27.02.2012 directed that a fresh enquiry has to be conducted, but the same has not been done, but the impugned notification has been given.

4. The case of the petitioner was that the election for the village panchayat was held on 21.10.2011 and in the panchayat there were six wards and he stood in the election for the 2nd Ward and he was elected as Ward Member and thereafter, a notification was issued to conduct election for the post of Vice-President on 30.11.2011 and the 4th respondent was the Returning Officer. He submitted his nomination form and it was accepted as per the Act. Except the petitioner, no other person filed any nomination. Therefore, he was declared elected on 30.11.2011. Even after the same, he was not allowed to work as elected Vice-President. However, by the notification dated 17.02.2012, further election was notified to be conducted on 27.02.2012. Therefore, the petitioner filed W.P.(MD).No.2169 of 2012 seeking to challenge the said election notification in respect of his panchayat and for consequential direction to grant permission to act as the Vice-President on the basis of the declaration made on 30.11.2011. In that writ petition, this Court passed an final order and in paragraphs 4 & 5 this Court has observed as follows:-

"4. When the matter was taken up today, the learned Special Government Pleader, by placing reliance on the minutes of the election submitted that the fourth respondent in hand in glove with the petitioner has manipulated the records to appear as if he was elected as Vice-President. In fact, there is a subsequent endorsement indicating that the petitioner himself has admitted that he was not elected. According to the learned Special Government Pleader, the State Election Commission would conduct an enquiry into the matter and appropriate action would be taken against the concerned election officer for his misconduct.

5. The election is scheduled to be held today. The Election Commission has already taken a decision to postpone the election, in view of the enquiry to be conducted in the matter. Therefore, the question of setting aside the election notification or stopping the election does not arise. The State Election Commissioner is directed to conduct enquiry with respect to the alleged election conducted on 30 November 2011 for the post of Vice President of T.Panavasal Village Panchayat, Kamuthi Panchayat Union. It is open to the petitioner to challenge the subsequent proceedings in case, he is aggrieved."

The said order has become final. But, subsequently, the petitioner sent a represent dated 04.04.2012 to the State Election Commission stating that no enquiry has been held as directed by this Court.

5. On notice from this Court, the Secretary to the Tamil Nadu State Election Commission filed a counter affidavit dated 20.07.2012 and the Block Development Officer, Kamuthi Panchayat Union, (3rd respondent herein) also filed a counter affidavit dated 11.06.2012. A typed-set has also been filed by the 1st respondent containing the statement of the 4th respondent as well as the enquiry report, dated 30.04.2012, relating to the election.

6. In the statement given by the 4th respondent / Assistant Election Officer, it was stated that for the election to the Panchayat Vice-President, out of six members only three members participated and when they attempted to postpone the meeting, one group of people contended that they already elected the petitioner and forced him to sign the declaration form and that fearing for his life, he signed the said declaration form. Further, it was not proper election and therefore, he requested the Election Commissioner to cancel the election and to take further steps.

7. The Assistant Returning Officer (R4), who is the Head Master of T.Vallakulam Union School, Punaivasal, further gave a statement that only three members participated in the election and when he informed them that only four members can form the coram, the petitioner was directed to be declared as Vice-President in the absence of any other nomination. Therefore, he contacted the 3rd respondent and the 3rd respondent informed him to postpone the election and affix a notice to that effect on the wall. When he was about to do the same, they broke his mobile phone and torn the notice-paper and they also forced him to sign in the minutes-book and in order to save is life, he wrote in such a manner. When he came to the Panchayat Union Office, he gave a letter to cancel the election.

8. The 3rd respondent in his enquiry report given to the District Collector, dated 30.04.2012, has stated that he conducted an enquiry on 27.04.2012 in the Panchayat Union Office and also reported about the complaint made by the 4th respondent.

9. In the counter affidavit filed by the Secretary to Tamil Nadu State Election Commission, it was stated that in the absence of any coram, any election is held, it is irregular and the petitioner himself has accepted in the enquiry conducted by the Election Commission that there were only three members present on 30.11.2011 and in view of the statement made by the Assistant Returning Officer that the election of the petitioner was invalid, subsequently elections were held on 22.05.2012 and all the six elected members participated and voted. Further, the petitioner also participated and contested the election, but the result could not be published in view of the interim order given by this Court.

10. The Election Commission has conducted a detailed enquiry on 05.07.2012 at Ramanathapuram and it was found that minutes records of the Assistant Returning Officer are not valid as there was no coram and in the subsequent election held on 22.05.2012, all the six members were present and election was held as per law.

11. In the light of the above facts, the learned Counsel Mr.G.R.Swaminathan appearing for the petitioner strenuously contended that the election to the post of Vice-President of a panchayat is governed by the Tamil Nadu Panchayats (Elections) Rules 1995 and under Rule 122, if any election has to be challenged, it has to be done by an election petition and that after declaration of the result of the petitioners election, no election petition was filed and therefore, the impugned order is invalid. As per Rule 93 of the said Rules, the election of the Vice-President shall be held in the office of the concerned village panchayat at a meeting specially convened for that purpose. In such a meeting, as there was no other person filed nomination, the petitioner was declared elected.

12. However, Rule 94(5) of the said Rules reads as follows:-

"No election of Vice-President shall be conducted at a meeting convened under this Rule unless there by present more than half of the ward members of the village panchayat available in the village panchayat at the time of election."

Therefore, the effect of the rule is that in the coram there must be more than half of the members. In the present case, as there were only six members in the Panchayat, the coram must be minimum four members.

13. Admittedly, the petitioner did not assert that there was a coram requiring for electing the Vice-President. Though the petitioner contended that no other person filed nomination, such a stand is not open to him, as this Court allowed the election proceedings to go on by a new election and directed the Election Commission to conduct an enquiry and in such an enquiry it was found that there was no coram and malpractice has taken place. Therefore, it is not open to the petitioner to contend that he is entitled to continue as Vice-President on the basis of the forced declaration made by the Assistant Returning Officer. The petitioner has not made out a case to interfere with the action of the Election Commission. Further, since the earlier order passed by this Court has become final, it is not open to the petitioner to contend that the Election Commission lacks powers to do so.

14. In view of the above, the writ petition will stand dismissed. Hence, there is no impediment for the respondents to publish the result of the election held on 22.05.2012. No costs. Consequently, connected Miscellaneous Petition is closed.