IN THE HIGH COURT OF JUDICATURE AT MADRAS (Contempt Jurisdiction)

Transcription

1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (Contempt Jurisdiction) Contempt Petition No. of 2017 IN W.P.No of 2017 Dravida Munnetra Kazhagam, Rep. by its organization Secretary, R.S. Bharathi, DMK Headquarters, Anna Arivalayam, 367 & 369, Anna Salai, Chennai Petitioner/Writ Petitioner Page 1 of 16 Vs. 1. Mr. M. Malik Ferozh Khan, I.A.S. (R), State Election Commissioner, Tamil Nadu State Election Commission, No.208/2, Jawaharlal Nehru Road, Opp. CMBT, Arumbakkam, Chennai Thiru. T. S. Rajasekar, I.A.S., The Secretary, The Tamil Nadu State Election Commission, No.208/2, Jawaharlal Nehru Road, Arumbakkam, Chennai Dr. (Mrs.) Girija Vaidyanathan, Chief Secretary to Government, Fort St. George, Secretariat, Chennai Mr. Hans Raj Verma, I.A.S., Principal Secretary to Government, Rural Development and Panchayat Raj Department, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai Mr. Harmander Singh, I.A.S., Principal Secretary to Government, Municipal Administration & Water Supply Department, Fort St. George, Secretariat, Chennai Mr.S.S. Poovalingam, Secretary to Government (i/c), Law Department, Fort St. George, Secretariat, Chennai

2 2 7. Mr.S. Palanisamy, IAS., Director of Town Panchayats, Kuralagam, Chennai Dr. D. Karthikeyan, I.A.S., Commissioner, Greater Chennai Corporation, Ripon Building, Chennai Respondents /Respondents AFFIDAVIT R.S.BHARATHI I, R.S. Bharathi, son of D.J. Raman, Indian, aged 69 years, having office at the Head Quarters of Dravida Munnetra Kazhagam (DMK), Anna Arivalayam, No. 367 & 369, Anna Salai, Teynampet, Chennai , do hereby solemnly affirm and sincerely state as follows: 1. I am the Organization Secretary of the Petitioner herein and also a Member of Parliament (Rajya Sabha). I am authorized by the General Secretary of the DMK to depose this affidavit on behalf of the party and as such I am well acquainted with the facts and circumstances of the case. 2. I humbly submit that the Petitioner had earlier filed a Writ Petition in W.P. No of 2016 before this Hon ble Court seeking for the following relief: Writ of Certiorarified Mandamus calling for the records pertaining to the impugned Government Orders in G.O.Ms No.103, Rural Development and Panchayat Raj (PR-1) Department Dated in respect of the offices of Chairman of Panchayat Union Councils; G.O.Ms No.105, Rural Development and Panchayat Raj (PR-1) Department Dated in respect of the seats of Wards in District Panchayats; G.O.Ms No.106, Rural Development and Panchayat Raj (PR-1) Department Dated in respect of seats of Wards in Panchayat Union Councils and quash the same, both on Reservation and on rotation and consequently, direct the Respondents to conduct the ensuing local Page 2 of 16

3 3 body election in the State of Tamilnadu, by strictly providing adequate reservation to the Scheduled Tribe, followed by necessary rotation of seats in all the posts, as mandated in the Constitution of India 3. I humbly submit that the Learned Single Judge by an Order dated was pleased to dispose of W.P.No of 2016 by issuing various directions at para 42 which is extracted hereunder: 42. While upholding the impugned Government Orders, to maintain purity in public life, this Court moulds the relief and gives the following directions: (i) Election Notifications dated issued for conduct of Local Body Election by the State Election Commission on and are vitiated for non-compliance of Rule 24 of the Tamil Nadu Panchayat (Elections) Rules, (ii) The State Election Commission is directed to issue fresh notifications, conduct elections and complete the election process, as per law, at the earliest, not later than (iii) The State government is directed to invoke Section 261 Transitory provision of the Tamil Nadu Panchayats Act, 1994, to administer the Local Bodies by appointment of Special Officers till the elections are held, as the present terms of the present Local Bodies are to expire soon and the same cannot be extended beyond five years. (iv) The State Government shall amend Rule 26 of the Tamil Nadu Panchayats (Election) Rules, 1995 by insertion of a sub-rule to incorporate State Election Commission Notification bearing S.O.No.43/2006/EG dated mandating the candidates desiring to contest to a local body, to file a separate affidavit, to furnish full and complete information, in regard to five categories, including criminal background, at the time of filing nomination, at the earliest. (v) The State Election Commission shall follow its notification bearing S.O.No.43/2006/ EG dated by suitably and strictly informing the Election Officers to reject the Page 3 of 16

4 4 nominations of candidates who fail to file affidavit, as per the above notification dated (vi) The State Election Commission shall sensitise the public especially candidates about its notification dated requiring affidavit disclosing criminal cases against the candidate by issue of advertisements so that the voters would be informed about the details of the candidates. (vii) The State Election Commission shall consolidate, record and data base the details provided by the candidates in the form of affidavits and upload them in its website. (viii) The State Government and State Election Commission shall look into and decide about complaints regarding reservation, dereservation of posts, deletion or addition of genuine eligible voters and enrolment of bogus voters etc., before conducting the election, after issuance of fresh election notifications. (ix) The State Election Commission shall write to recognized and registered political parties/organizations, in exercise of power under Article 243K of the Constitution of India asking them not to field/sponsor any candidate with criminal background/history for the local body election within four weeks to prevent criminalisation and hijacking of local bodies by criminal elements. 4. I humbly submit that aggrieved by the said Order dated , the State Election Commission alone had preferred an appeal in W.A.No.1268 of 2016 before the Direction Bench of this High Court. It is submitted that when the above Writ Appeal was pending for hearing, the Division Bench of this Hon ble court on the request of the petitioner to hold the local body elections, by an order dated directed the Respondents to complete the election process by thereby directing the Respondents to conduct and complete elections of all local bodies by However, the order of the Division Bench was not complied with Page 4 of 16

5 5 and therefore the Petitioner herein has filed Contempt Petition No.642 of The Division Bench has ordered notice to the Respondents therein and the said Contempt Petition is pending. Meanwhile, the 2 nd Respondent filed C.M.P.No.3031 of 2017 and sought extension of time upto for preparation of Electoral Roll and complete the process of election before July The affidavit of the 2 nd Respondent may be read as part and parcel of this affidavit. However, the Respondents 1 and 2 violated their own undertaking given to the Court and danced to the tunes of political masters as the climate was not in favour of the ruling party and therefore did not come forward to conduct election before July Sensing that the Respondents have no idea of conducting elections, during the pendency of the above Writ Appeal, the Petitioner therefore had filed one more Writ Petition in W.P.No of 2017 seeking issuance of a Writ of Mandamus directing the Respondents therein to hold election to all local bodies in the State of Tamil Nadu including Panchayats and Municipalities by exercising the powers under Articles 243 K and 243 ZA of the Constitution of India within a stipulated time. 5. I humbly submit that during the pendency of the above appeal one social activist namely, Change India represented by its Director A. Narayanan filed another Writ Petition in W.P.No of 2017 seeking issuance of a Writ of Declaration, declaring the promulgation of the Tamil Nadu Municipal Laws (Third Amendment) Ordinance, 2016 (Tamil Nadu Ordinance 2 of 2016) and promulgation of the Tamil Nadu Panchayats (Third Amendment) Ordinance, 2016 (Tamil Nadu Ordinance 1 of 2016) and notification of G.O.Nos.145, 146, 147 and also G.O.Nos.124, 125 and 126 appointing Special Officers for the urban and rural local bodies respectively till and further extension of their tenure till as ultra vires of the Constitution. Page 5 of 16

6 6 6. I humbly submit that meanwhile as against the order dated made in W.A.No.1268 of 2016 neither the State Election Commission nor the State government filed SLP before supreme court. Thus the said order became final and conclusive. However one Mr.P.K. Ganesan filed SLP No.4878 of 2017 before the Hon ble Supreme Court of India challenging the above said order and the Hon ble Supreme Court of India dismissed the SLP on and requested the division bench to proceed to hear the main Writ Appeal in WA No 1268 of I humbly submit pursuant to the directions of the Hon ble Supreme court, this Hon ble court proceeded to hear the Writ Appeal and above writ petitions together and reserved the matters for orders on and pronounced the orders on This Hon ble court has extracted the arguments made by the Learned Advocate General appearing for the Government in the order dated as follows: 23. The Learned Advocate General appearing on behalf of the State of Tamil Nadu submitted that in accordance with the endeavour of the State Government to comply with its constitutional mandate of conducting elections to local bodies before the expiry of the term as enshrined under Article 243-E of the Constitution of India, elections to the local bodies were announced. 24. The learned Advocate General submitted that even though there is another constitutional mandate under Article 243-C to delimit wards as per latest census data, the Government decided to conduct local body elections without going through the process of delimitation of wards as per the census of 2011 in order to ensure that the electoral process was completed by October, Accordingly, to retain the existing territorial wards for the ensuing elections without delimitation amendments were made to the Page 6 of 16

7 7 Tamil Nadu Panchayats Act, 1994, Tamil Nadu District Municipalities Act, 1920 and laws relating to Municipal Corporations in the State. He further stated that many writ petitions were filed seeking directions on the Respondents to undertake delimitation prior to elections and rotate the reservation of wards, which had remained the same for about 20 years. 26. The Learned Advocate General further submitted that the consultation with Tamil Nadu State Election Commission was completed by September, 2016 and the entire administrative machinery of election officers and police personnel was placed at the disposal of State Election Commission for conduct of elections. On , the Tamil Nadu State Election Commission notified the programme of elections, pursuant to which 4.9 lakh nominations were received from the candidates till , which was the last date for filing nominations. However, on , a Single Bench of this Court issued the order in W.P.No of 2016 under appeal, as a result of which the election process could not be completed. xxx xxx xxx xxx 33. The Learned Advocate General submitted that completion of the delimitation process would enable the State Government to fully discharge the constitutional obligations imposed on the State under Article 243-C of the Constitution. However, after hearing the arguments of the Learned Advocate General and the respective Counsels, this Hon'ble Court at para no.51 has held as follows:- 51. The proposition which emerges from the judgment of the Supreme Court in Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others (supra), is that the Election Commission is to complete election to municipal bodies before the expiration of five years. It is not to put forward any excuse on unreasonable grounds to postpone Page 7 of 16

8 8 elections. Any revision of electoral rolls are to be carried out in time and if it cannot be carried out within a reasonable time, the election has to be conducted on the basis of the then existing rolls. Further, this Hon'ble Court, at para no.57, has held as follows: 57. In Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others, (supra), the Supreme Court referred to the aforesaid opinion of Pasayat, J. and held that from the opinion thus expressed, it is clear that the State Election Commission was not to put forward any excuse based on unreasonable grounds that the election could not be completed in time. The Election Commission would have to try to complete the election before the expiration of the duration of five years period as stipulated. Any revision of electoral rolls is to be carried out in time and if it cannot be carried out within a reasonable time, the election has to be conducted on the basis of the then existing rolls. In other words, the Election Commission would have to complete the election before the expiration of the duration of five years period as stipulated in Clause (5) and not yield to situations that may be created by vested interests to postpone elections from being held within the stipulated time. Further, at paras 84 and 87, this Hon'ble Court has held as follows: 84. As observed above, elections to local bodies were to be held within five years from the date of the first meeting. This has not been done. Elections are long overdue. A period of almost one year has elapsed from the date of expiration of the tenure of the local bodies. In the circumstances, it is imperative that elections be held immediately. 87. The notification announcing elections to local bodies in Tamil Nadu shall definitely be published within 18 th September 2017 and elections to local bodies shall be completed by 17 th November, We are informed that the appeal is listed for hearing before the Supreme Page 8 of 16

9 9 Court on Needless to mention that these directions will be subject to any orders that might be passed by the Supreme Court on I humbly submit that therefore duty is cast upon the 1 st and 2 nd Respondent to conduct elections unmindful of any alleged impediment brought out by the Respondents 3 to 6 to satisfy the political masters to delay the elections. On the contrary, despite the clear directions of this Hon'ble Court that elections should be held on the basis of the then existing rolls and wards, the Respondents, contrary to the said directions, served an affidavit dated seeking to keep para 87 of common judgment dated in W.A.No.1268 of 2017 in abeyance. Such prayer is unknown within the legal Parameters and cannot be countenanced in law. The intention of the Respondents 3 to 8 is to defy the constitutional requirement of conducting the elections despite removing all the impediments by this Hon'ble Court under the order dated The Respondents 3 to 6 with an intention of overcoming the orders of this Hon'ble Court, created barricades and obstacles by way of abusing their executive powers by arranging to issue Ordinance No.4 dated on a Sunday. 9. I humbly submit that originally this Hon'ble Court posted for pronouncing orders in the Writ Appeals and connected Writ Petitions on However, there was no sitting on the said date and hence the orders were pronounced on by this Hon ble court. Before pronouncing the orders, the Respondents through their Counsels made a request to defer from pronouncing the orders. However, this Hon'ble Court rejected their request and pronounced the orders on All these events would reflect that the Respondents have no respect towards the implementation of the orders of this Hon'ble Court nor they have any regard to the constitutional requirements. Page 9 of 16

10 I humbly submit that local bodies being the voice of the people, the constitutional requirement is that the local bodies have to function without any break. The Hon ble Supreme Court in the judgment reported in 2002(8) SCC Page 237 has held that constitutional bodies cannot be kept vacant for more than 6 months. Following the said judgment, the Hon ble Supreme Court in the judgment reported in 2006(8) SCC page 352 has held that Art 243 E(3) and 243 U(3) has to be respected and followed by the State Election Commissioner who is appointed specifically for this purpose. 11. The 1 st Respondent who is the constitutional authority appointed specifically to conduct local body elections and whose salary is paid out of public exchequer is now indulging in all acts of forestalling the same. His actions and conduct amounted to breach of trust and faith the constitution has reposed on him. 1 st Respondent has taken law in to his own hands and claims that he is neither bound by orders of court or by the constitution but remain loyal and faithful to political masters of ruling party who are his appointees. He claims that unless his political master who has appointed him gives a green signal he will not issue election notification for the local bodies. 12. Be that as it may the conduct of the Respondents 3 to 8 is still worse. No allocation of funds has been made and no initial steps were taken by them. No meeting has taken place in this regard. Interestingly on the contrary to scuttle the election process all connived and contrived with each other and with the help of legal brains and 6 th Respondent who operates as front to sabotage the local body elections hastly brought out an ordinance on two days after judgment was proposed to be delivered on There was no need for the executive to pass this Ordinance on a Sunday viz and there is no grave urgency to pass such Ordinance by executive when Assembly was not in Session. This shows sheer abuse of power and to over reach the court proceedings and the orders that was slated to be pronounced Page 10 of 16

11 11 on The Respondents 3 to 6 who have appeared before this Hon'ble Court argued through the Counsel and orders have been reserved on ought to have sought permission from this Hon'ble Court to bring such Ordinance. The acts of the Respondents are certainly contemptuous and overreaching the court proceedings particularly when the matters were heard and reserved for orders. This shows there is no rule of law prevailing in the State. 13. I state that when this Hon'ble Court posted the matter for orders on and postponed to suddenly the Respondents 3 to 6 has brought out an Ordinance on to thwart the orders of this Hon'ble Court. The conduct of the Respondents shows that all is not well in the functioning of the Government and the State Election Commission who are bent upon in overreaching the court proceedings and orders of this Hon'ble Court. 14. I humbly submit that the 1 st Respondent after the orders were pronounced has come out with a lame excuse that by virtue of the Ordinance issued by the Respondents 3 to 6, the election cannot be conducted. The Ordinance dated omits the following Sections in the following Acts:- I. Amendment to the Chennai City Municipal Corporation Act: (a) (b) Section 5(3) proviso omitted. Sections 46AA, 46AAA and 46AAAA omitted. II. Amendment to the Tamil Nadu District Municipalities Act, 1920: (a) Sections 43AA, 43AAA and 43AAAA omitted. III. Amendment to the Madurai City Municipal Corporation Act, 1971: (a) (b) Section 5(3) Proviso deleted. Sections 50A, 50AA and 50AAA omitted. IV. Amendment to the Coimbatore City Municipal Corporation Act, 1981: (a) Section 5(3) Proviso deleted. Page 11 of 16

12 12 (b) Sections 52AA, 52AAA and 52AAAA omitted. V. Amendment to the Tamil Nadu Panchayats Act, 1994: (a) Sections 28A, 28AA and 28AAA Omitted. In the explanatory statement, the 6 th Respondent has given misleading reasons for bringing out the Ordinance. Para 3 of the explanatory statement reads as follows: In view of pendency of cases in High Court and Supreme Court of India, ordinary elections to local body could not be conducted till date. Such stand of 6 th Respondent to introduce impugned Ordinance is ex-facie illegal and contemptuous and has attempted to overreach the proceedings pending before this Hon'ble Court. Hence 6 th Respondent has directly and indirectly helped the 1 st Respondent to come out with lame excuse to delay the Orders of this Hon'ble Court. 15. I humbly submit that the arguments of all the Counsels were heard by this Hon'ble Court including the learned Advocate General and orders were reserved by this Hon'ble Court on When the matter is subjudice before this Hon'ble Court particularly relating to the Local Body Elections, Respondents 3 to 6 ought not to have issued an Ordinance enabling them to delete the provisions from statute books. However, the effect of omitting these provisions will have no bearing in conducting the elections as this Hon'ble Court relying upon the judgments of the Hon ble Supreme Court of India has already clarified at para no.51 that the election has to be conducted on the basis of the then existing rolls and wards. In view of the fact that the election notification dated was issued to conduct the election on the basis of the wards and census that was followed on the notification day and in view of this Hon'ble Court giving a categorical direction at para no.51 to conduct elections on the basis of the then existing rolls and also wards without going for a delimitation, there was no justification on the part of the 1 st Page 12 of 16

13 13 Respondent to seek for clarification either from this Hon'ble Court or from the Hon ble Supreme Court of India. In this regard, para 57 of the order of this Hon'ble Court makes it clear that the 1 st Respondent should not yield to situations that may be created by vested interests to postpone elections from being held within the stipulated time. The vested interests viz. 3 to 6 th Respondents are creating an legal obstacle by way of an Executive Ordinance which cannot come in the way of enforcing the orders of this Hon'ble Court. In fact the Hon ble supreme court in the judgment referred above reported in 2006(8)SCC Page 352 has held that only in a case of natural calamity the election can be postponed and for no other reasons the election can be postponed. Infact this Hon ble court has followed the said judgment and has given a clear directions in this regard to the Respondents. Therefore as held by the Hon ble supreme court whatever electoral rolls, wards that was available last local body election the same could be followed. This is what reiterated in 2006(8)SCC Page 352 and by this Hon ble court in the impugned common judgment. 16. I humbly submit that the effect of omitting all the provisions referred in the Ordinance has not created any legal impediment as claimed by the 1 st Respondent as reading of the common judgment of this Hon'ble Court dated makes it abundantly clear that despite the fact that the delimitation process are not over the constitutional requirement of conducting the election as contemplated under Article 243-E(3) and 243-U(3) has to be followed mandatorily. This was answered by this Hon'ble Court clearly in the common judgment dated I humbly submit that the Respondents are well aware of the order as the order copy have been furnished to all parties on itself which could be seen from the typed set of papers. The 1 st Respondent has deliberately waited up till and thereafter has filed petition seeking Page 13 of 16

14 14 to keep the order in abeyance. Neither the Respondents 3 to 8 have taken any steps to allocate funds for conduct of election nor they have raised a little finger to take steps to ensure compliance of the orders of this Hon'ble Court. Thus, all the Respondents consciously, willfully and wantonly have disobeyed the common judgment of this Hon'ble Court dated I humbly submit that no leniency should be shown for the deliberate inaction on the part of the Respondents despite two Division Bench orders namely, dated as well as besides the orders of Supreme Court passed time and again directing them to hold elections. The Respondent s contemptuous act shows scant respect towards the orders of this Hon'ble Court; towards the Constitution and democracy and this is a classical example as to how the highest authority are defying the orders of the highest Court in the State. The High Court being the highest court in the State and the Hon'ble First Bench s order being disregarded and disobeyed with impunity for the purpose of gaining advantage for ruling party to satisfy their political masters and this will only send a strong message that the Court s order could be sabotaged by virtue of abusing and misusing the executive powers. The Court being the last resort for any litigant, if the Respondents are allowed to go scot free despite violating the orders by not adhering to election schedule, common man will lose his confidence on the judiciary. Hence, they should be dealt with iron hands and should be punished with maximum sentence. 19. I state that the local body election being the lifeline of democracy, which echoes the views of the people, the Respondents are deliberately scuttling the establishment of such platform. The only reason is the ruling party does not enjoy the peoples support and therefore the Respondents political matters are against conducting the local body elections. However the fact remains that the people of Tamilnadu are agitated and frustrated as the entire Tamilnadu is hit with dengue fever, malaria etc. There is no proper water Page 14 of 16

15 15 supply. Roads, infrastructure facilities, sanitary and hygienic environment are not maintained as the local bodies have come to a standstill as there is no people s representative to pull them and extract the work. The saddest part is that the Central Government funds to various local bodies are withheld as no elections were conducted by the 1 st Respondent. Thus 4000 crores of Rupees set-apart for Tamilnadu by Central Government is going waste due to the political games played by the Respondents and the people are the ultimate sufferers. 20. The Respondents are bound by the orders of this Hon'ble Court and constitutional mandates and cannot dance to the tunes of the political masters and disrespect the intention of the constitution makers. If this being the attitude of the Respondents even to the direction issued by the First Bench of this Hon'ble Court, certainly a time has come that they should be taught a lesson by sending them to jail by imposing a maximum punishment. Therefore the Respondent has to be directed to conduct and complete the local body elections with the then existing electoral rolls and wards which were available when the 1 st and 2 nd Respondent issued Election Notifications dated for conduct of Local Body Election by the State Election Commission on and It is, therefore, prayed that this Hon ble Court may be pleased to direct the Respondents to conduct and complete the local body elections in the State of Tamilnadu within the time frame fixed by this Hon ble Court based upon the then existing electoral rolls and wards which were available when the 1 st and 2 nd Respondent issued Election Notifications dated for conduct of Local Body Election by the State Election Commission on and pending disposal of the above Contempt Petition and pass such or further orders as this Hon ble court may deem fit proper and thus render justice. Page 15 of 16

16 It is, therefore, humbly prayed that this Hon'ble Court may be pleased to punish the Respondents for violating the common judgment of this Hon'ble Court dated in W.A.No.1268 of 2017, W.P. No of 2017 etc., by imposing maximum punishment as contemplated under the Contempt of Courts Act, 1971 by imprisoning them to jail and pass such further or other orders as this Hon ble Court may deem fit and proper to pass in the circumstances of the case and thus render justice. Solemnly affirmed and signed his name in : BEFORE ME my presence at Chennai on this the 2nd day of October ADVOCATE CHENNAI Page 16 of 16