S T MUTHLJSAMI Vs. K NATARAJAN

JUDGEMENT

(1.) The question for consideration in this case is whether it is appropriate for the High Court to interfere with an election process at an intermediate stage after the commencement of the election process and before the declaration of the result of the election held for the purpose of filling a vacancy in the office of the Chairman of a Panchayat Union under the provisions of the Tamil Nadu Panchayats Act, 1958 (Act XXXV of 1958) (hereinafter referred to as 'the Act') on the ground that there was an error in the matter of allotment of symbols to the candidates contesting at such election.

(2.) The appellant S.T. Muthusami, respondent No. 1 K. Natarajan, respondent No. 6 - M. Thangavelu and two others were nominated as candidates at the election held to the office of the Chairman, Panchayat Union, Madathukkulam, Udamalpet Taluk, Coimbatore District in the State of Tamil Nadu. The date of scrutiny of the nomination papers was 31st January, 1986 and the last date for withdrawal of nominations was 3rd February, 1986. The election was to take place on the 23rd February, 1986. On the date of the scrutiny of the nomination papers, the nomination papers of the appellant, respondent No. 1, respondent No. 6 and of two others were found to be valid by the Returning Officer, respondent No. 5. As regards the allotment of symbols to the candidates the Order made by the State Government on 8-1-1986 in exercise of the powers under rule 17(1) of the Tamil Nadu Panchayats (Conduct of Election of Chairmen of Panchayat Union Councils and Presidents and Members of Panchayats) Rules, 1978 (hereinafter referred to as 'the Rules') directed that the Returning Officer shall assign to the candidates set up by the National and the State parties the symbols reserved for the purpose by the Chief Election Commissioner. The symbol reserved for the Indian National Congress (I) was 'hand'. Similarly the symbols were also reserved for the All India Anna Dravida Munnetra Kazhagam and Dravida Munnetra Kazhagam. 15 other symbols were also notified by the Returning Officer which could be assigned to the independent candidates contesting the elections. Under the procedure prescribed by the Government where a candidate was set up by a national party who could claim the symbol which was reserved for such national party, the said national party had to send an intimation to the State Election Authority, namely, the Director of the Rural Development, Madras (respondent No. 3) intimating in Form 'A' annexed to the Order of the Government the names and the specimen signatures of not more than two representatives of the party who had been authorised to send intimations of the names of the candidates set up by the party in respect of the election to the office of the Chairmen of the Panchayat Union Councils and the Presidents of Town Panchayats. These representatives of the parties, whose names were intimated to the Director of the Rural Development were then either singly or generally required to intimate the names of the persons, whom the party concerned had authorised to contest as its official candidates in order of priority in form 'B' annexed to the Government Order. If the support to a candidate was withdrawn an intimation was required to be sent to the Returning Officer not later than 3.00 P.M. on the last date fixed for withdrawal of the nomination papers. If no intimation was received before 3.00 P.M. on the last date fixed for withdrawal the Returning Officer was directed not to consider any candidate as a candidate set up by the political party and not to assign the symbol for which the priority was given to the concerned party. This order also stated that symbols should be assigned only by drawing lots when there were conflicting claims between two or more candidates and that no priority could be given to any candidate. In the case before us intimation was received by the Returning Officer showing the appellant as the official candidate of Indian National Congress (I) under the signature of the President of the Tamil Nadu Congress (I) Committee by 12.00 noon on the 3rd of February, 1986. A similar letter was handed over by respondent No. 6 at 12.45 P.M. on that date showing that he was also the official candidate of the Indian National Congress (I). That letter also appeared to have been signed by the President of the Tamil Nadu Congress (I) Committee. Having found that two persons were claiming to be the official candidates of the same party, the Returning Officer declined to grant the symbol 'hand' to any one of them. These two candidates, i.e., the appellant and respondent No. 6 then gave in writing their choice of symbols belonging to the unreserved category giving three alternative choices. Accepting the first choice of each of them, the Returning Officer allotted at 4.30 P.M. on 3-2-1986 the symbol 'glass tumbler' to the appellant and the symbol 'fish' to respondent No. 6. The Returning Officer then proceeded to publish the list of the candidates nominated as per rule 17(2) of the Rules with the symbols allotted to each of the three candidates, whose nomination papers had been found to be valid. Immediately after the publication of the said list of the nominated candidates, the President of the Tamil Nadu Congress (I) Committee who was alleged to have signed both the letters given to the Returning Officer representing that the appellant and respondent No. 6 were both official candidates wrote to the Director of the Rural Development Department, respondent No. 3, who was the Election Authority as well as the Secretary to the Government, Rural Development Department, Government of Tamil Nadu on 4-2-1986 stating that he had not given his approval to respondent No. 6 being an official Congress (I) candidate and that the authorised candidate of the Congress (I) Party was the appellant, S.T. Muthusami. On receipt of the said letter respondent No. 3 the Director of the Rural Development Department, the Election Authority sent a telex message to the Collector of Coimbatore to treat the appellant as the official candidate of the Indian National Congress (I) Party and to assign the symbol 'hand' to him. The Collector communicated this message to the Returning Officer by sending telex message on 6-2-1986. In accordance with that direction the Returning Officer issued an Errata Notification in Form VI assigning the symbol 'hand' which had been reserved for the Indian National Congress (I) to the appellant on that date itself and the copies of the said Errata Notification were sent by him to all the contesting candidates through special messengers. This action of the Returning Officer was challenged by respondent No. 1 K. Natarajan, who was a validly nominated candidate with 'bow and arrow' as his symbol by filing a petition in Writ Petition No. 1178 of 1986 on the file of the High Court of Madras under Article 226 of the Constitution of India contending that the issuing of the Errata Notification was an abuse of power committed on extraneous and irrelevant considerations and there was undue interference with the actual conduct of the election. He prayed before the High Court that the Errata Notification dated 6-2-1986 should be quashed and the election should be directed to be proceeded with in accordance with the notification issued on 3-2-1986 under which the 'glass tumbler' symbol had been allotted to the appellant. The above Writ Petition came up for consideration before the learned single Judge of the High Court on 17-2-1986. The learned Single Judge dismissed the Writ Petition holding that respondent No. 1 K. Natarajan, who had filed the Writ Petition, could not be considered as an aggrieved party since he did not claim to be the candidate sponsored by the Indian National Congress (I) and that the dispute could be, if at all, between the appellant and respondent No. 6. Aggrieved by the order of, the learned single Judge, respondent No. 1 filed an appeal in Writ Appeal No. 173 of 1986 before the High Court of Madras. The said appeal was heard by a Division Bench and it was allowed on 8-4-1986. The Division Bench quashed the Errata Notification issued by the Returning Officer and directed him to hold the election on the basis of the symbols originally allotted, treating 'glass tumbler' as the symbol of the appellant and 'fish' as the symbol of respondent No. 6. The Returning Officer was further directed to proceed immediately with the election process from that stage as provided by the Rules. Aggrieved by the order of the Division Bench, the appellant has filed this appeal by special leave.

(3.) In this appeal there is no dispute about the facts which have been set out above. The point urged by the appellant before us is that the Division Bench was in error in setting aside the Errata Notification issued by the Returning Officer in exercise of its jurisdiction under Article 226 of the Constitution of India before the declaration of the result of the election in view of the existence of an alternative remedy under the Rules framed under section 178(2)(ii) of the Act entitled 'Decision of Election Disputes Relating to Panchayat Union Councils' which has provided a machinery for the settlement of the election disputes relating to Panchayat Union Councils. The relevant parts of rule 1 and rule 11 of the said Rules read thus: