The Madras High Court today reserved its order on a contempt plea by the DMK against the Tamil Nadu State Election Commissioner and poll body secretary for not complying with a court order on holding local body polls and excused the officials from personal appearance.
The first bench, comprising Chief Justice Indira Banerjee and Justice M Sundar, excused SEC M Malik Ferozh Khan and secretary S Rajasekar on an undertaking that they would appear in court whenever required.
Their counsel said there was a doubt whether to follow the census of 1991 or 2011 and when there were two reasonable interpretations, then there was no contempt.
Hence, the government brought out an ordinance, repealing certain provisions of the Acts in force in corporations for the purpose of carrying out delimitation, he said.
Citing the Tamil Nadu Panchayat Act, the counsel said that by virtue of repealing section 28A, 28AA and 28AAA, section 26 comes into play, as per which delimitation has to be done based on the 2011 census.
He said the delimitation process was being carried out by the Delimitation Commission, headed by the SEC.
Notwithstanding the ordinance, if the court gave a direction to follow the 1991 census, SEC would do so, he said.
Stating that SEC has tendered an unconditional apology, counsel prayed that the court discharge him and requested the court to take a lenient view in the matter.
Senior counsel P Wilson, appearing on behalf of DMK, submitted that if there was confusion, the SEC could have asked the government to issue a notification under section 28 of the Act, dividing the areas.
If the argument was that they could not implement the order because of the ordinance, then the government has to answer why they brought in the Ordinance and did not comply with the court order, he said.
Pointing out that the High Court has said it would not go into delimitation, Wilson sought to know where then was the question of doing delimitation based on 2011 census.
Irrespective of delimitation not being done, the election has to be conducted, he said.
The matter relates to the contempt petition filed by the DMK, represented by its organisation secretary R S Bharathi, seeking to punish the officials for not complying with the orders of the High Court which had earlier directed that the polls be completed by November 17.
In its September 4 order, the court had directed SEC to issue the notification for the polls on September 18 and complete the entire process by November 17.
However, citing repeal of certain sections of the Tamil Nadu Panchayat Act, 1994 by the state government through an ordinance on September 3, the SEC had later moved the court, saying there was legal disability in conducting the polls as directed and sought to keep in abeyance the order.
DMK had questioned the urgency to issue the ordinance, and claimed that it showed "sheer abuse of power".
The local body polls were originally slated to be held in October last year, but were cancelled by Justice N Kirubakaran on a petition by the DMK, seeking among others, appropriate reservation as per latest census and rotation of seats according to the norms.
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