[ 1 ]
DTP—V-4 Ex.(209)—1
TAMIL NADU
GOVERNMENT GAZETTE
EXTRAORDINARY PUBLISHED BY AUTHORITY
No. 209]
chennai, SATURDAY, april 24, 2021
Chithirai 11, Pilava, Thiruvalluvar Aandu–2052
Part V—Section 4
Notifications by the Election Commission of India
©
[Regd. No. TN/CCN/467/2012-14.
government of tamil nadu
[R. Dis. No. 197/2009.
2021
[Price : Rs.14.40 Paise.
NOTIFICATIONS BY THE ELECTION COMMISSION OF INDIA
Judgement of the High Court of Madras in Election
Petition No.5 of 2009
No. SRO G-24/2021.
The following Notification of the Election Commission of India, Nirvachan Sadan,
Ashoka Road, New Delhi-110 001, dated 18th March, 2021 [27 Phalguna, 1942
(Saka)] is published:-
No.82/TN-HP (EP 05 of 2009)/2021:- In pursuance of section 106 (b) of the
Representation of the People Act, 1951 (43 of 1951), the Election Commission
hereby publishes the Order of the High Court of Madras dated 16.02.2021 in Election
Petition No. 05 of 2009.
2
Tamil nadu government gazette extraordinary
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION)
TUESDAY, THE 16TH DAY OF FEBRUARY 2021
THE HON’BLE MRS.JUSTICE PUSHPA SATHYANARAYANA
ELP.No.5 of 2009
and
OA.No.18 of 2013
ELP No.5 OF 2009
Thiru.R.S.Raja Kannappan,
S/o. Samia Pillai,
No.32/17, Pudhur Road Main,
Sivagangai District
….. Petitioner
-Vs-
1.
Thiru.P.Chidambaram,
S/o. Palaniappan,
No.87/1-54, Mothilal Street,
Kandanur, Karaikudi Taluk,
Sivagangai District.
2. Thiru.M.G.Devar,
S/o. Mahalinga Devar,
No.3/102, Karuppasamy Koil Street,
Villoor Post, Villoor.
3. Thiru.K.Sakthivel,
S/o. Karuppaiah,
No.82/1, 5th Street, Padmanabha Nagar,
Adyar, Chennai.
4. Smt.Barwatha Regina Papa,
W/o. Sundar,
No.2/868, Vanavil, Vaiduriyam Veedhi,
Navarathina Nagar, Karaikudi.
5. Thiru.R.A.Ramasamy,
S/o. Andi,
No.75/54, Jawaharlal Puram,
Thirumalpuram Post, Madurai.
6. Thiru. J.Abupacker Sithik,
S/o. Mohamed Jalaluddin,
No.3, Meenakshi Amman Koil Street,
Karaikudi.
3
Tamil nadu government gazette extraordinary
7. Thiru.Aru. Alagappan,
S/o. Arumugam,
No.3, Meenakshi Amman Koil Street,
Keezha Mel Street, Karaikudi.
8. Thiru.P.L.Alagappan,
S/o. Palaniappan,
No.102, Rajaji Street,
O. Siruvayal, Karaikudi Taluk.
9. Thiru. V.S.K.S. Anandhan,
S/o. Sonai Muthu,
No.43, Periya Unjinai, Devakottai Taluk.
10. Thiru.K.Samudram Kalaimani,
S/o. Ganapathy ServaI, Nadu Samudhiram
Salaigramam, Illayankudi Taluk,
Sivagangai District.
11. Thiru.K.Karmegam,
S/o.Karuppaiah,
No.146, Peria Kannanoor,
Kannanoor Post, Sivagangai Taluk,
Sivagangai District.
12. Thiru.P.Gunasekaran,
S/o. Pappu,
No.8/1/133, Muzhuveeran Street,
Singampunari, Thirupathur Taluk,
Sivagangai District.
13. Thiru.S.Chidambaram,
No. 4/148, N.A.Periakottai,
Sivagangai Taluk, Sivagangai District.
14. Thiru.M.Arimalam Thiyagi Subramanian Mutharaiyar,
S/o. Muthukaruppan,
No.179/71, Meenakshipuram Road,
Arimalam Post, Thirumayam Taluk,
Pudukkottai District.
15. Thiru. M.Thoothai Selvam,
S/o. Marutha Muthu,
No.3, Bungalow Street,
Thirupuvanam, Manamadurai Taluk,
Sivagangai District.
16. Thiru.P.Malairaj,
S/o. Balusamy,
No.9/2, Captain Lakshmi Street,
Nattarasan Kottai, Sivagangai Tk.,
Sivagangai District.
4
Tamil nadu government gazette extraordinary
17. Thiru.A.Radhakrishnan,
S/o. Adaikalam,
No.28/49/2, Gandhi Nagar First Street,
Pudukkottai, Pudukkottai District.
18. Thiru.S.Rajagopal,
S/o. Shanmuga Devar,
No.299, Agraharam, Karaiyoorgramam,
Thirupathur Taluk, Sivagangai District.
19. Thiru.R.Rajiv,
S/o. Radhakrishnan,
No.106, Mamarathu Street,
Therbhogi Village,
Ramanathapuram District.
20. The Returning Officer,
Sivagangai Parliamentary Constituency,
Sivaganga.
….. Respondents/Respondents
* R20 struck off from Respondents on 08-12-2013 in OA.No.911 of 2012 in
ELP No. 5 of 2009.
This Election Petition praying that this Hon’ble Court be pleased to
(i)
Declare
the
election
of
the
Returned
candidate,
namely
Thiru P.Chidambaram, the 1st respondent herein from No.31 Sivaganga Parliamentary
Constituency, (Tamil Nadu, India) in the election held on 13-05-2009 (in which results
have been declared on 16.05.2009) as void.
(ii) Order re-securing the voting results recorded in the Electronic Voting
Machine used for the counting in No.31, Sivaganga Parliamentary Constituency,
(Tamil Nadu, India) in the election held on 13-05-2009.
(iii) Order recounting of the votes polled in the election to No.31, Sivaganga
Parliamentary Constituency, (Tamil Nadu, India) held on 13-05-2009 (in which results
have been declared on 16-05-2009).
(iv) Order recounting of the votes polled in the Alangudi Assembly segment
of No.31, Sivaganga Parliamentary Constituency in the election held on 13-05-2009
(in which results have been declared on 16-05-2009).
(v) Declare the Petitioner as duly elected from No.31, Sivaganga
Parliamentary Constituency, (Tamil Nadu, India) in the election held on 13-05-2009
(in which results have been declared on 16.05.2009).
(vi) Direct the First Respondent to pay the costs of the petition.
5
Tamil nadu government gazette extraordinary
OA.No.18 OF 2013
P.Chidambaram,
S/o. Palaniappan,
No.87/1-54, Mothilal Street,
Kandanur, Karaikudi Taluk,
Sivagangai District.
….Applicant/1st Respondent
-Vs-
1.
Thiru. R.S.Raja Kannappan,
S/o. Samia Pillai,
No.32/17, Pudhur Road – Main,
Sivaganga District.
….Respondent/Petitioner
2.
Thiru.M.G.Devar,
S/o. Mahalinga Devar,
No.3/102, Karuppasamy Koil Street,
Villoor Post, Villoor.
3.
Thiru.K.Sakthivel,
S/o. Karuppaiah,
No.82/1, 5th Street, Padmanabha Nagar,
Adyar, Chennai.
4. Smt.Barwatha Regina Papa,
W/o. Sundar,
No.2/868, Vanavil, Vaiduriyam Veedhi,
Navarathina Nagar, Karaikudi.
5. Thiru.R.A.Ramasamy,
S/o. Andi,
No.75/54, Jawaharlal Puram,
Thirumalpuram Post, Madurai.
6. Thiru. J.Abupacker Sithik,
S/o. Mohamed Jalaluddin,
No.3, Meenakshi Amman Koil Street,
Karaikudi.
7. Thiru.Aru. Alagappan,
S/o. Arumugam,
No.3, Meenakshi Amman Koil Street,
Keezha Mel Street, Karaikudi.
8. Thiru.P.L.Alagappan,
S/o. Palaniappan,
No.102, Rajaji Street,
O. Siruvayal, Karaikudi Taluk.
6
Tamil nadu government gazette extraordinary
9. Thiru. V.S.K.S. Anandhan,
S/o. Sonai Muthu,
No.43, Periya Unjinai, Devakottai Taluk.
10. Thiru.K.Samudram Kalaimani,
S/o. Ganapathy Serval, Nadu Samudhiram
Salaigramam, Illayankudi Taluk,
Sivagangai District.
11. Thiru.K.Karmegam,
S/o. Karuppaiah,
No.146, Peria Kannanoor,
Kannanoor Post, Sivagangai Taluk,
Sivagangai District.
12. Thiru.P.Gunasekaran,
S/o. Pappu,
No.8/1/133, Muzhuveeran Street,
Singampunari, Thirupathur Taluk,
Sivagangai District.
13. Thiru.S.Chidambaram,
No. 4/148, N.A.Periakottai,
Sivagangai Taluk, Sivagangai District.
14. Thiru.M.Arimalam Thiyagi Subramanian Mutharaiyar,
S/o. Muthukaruppan,
No.179/71, Meenakshipuram Road,
Arimalam Post, Thirumayam Taluk,
Pudukkottai District.
15. Thiru. M.Thoothai Selvam,
S/o. Marutha Muthu,
No.3, Bungalow Street,
Thirupuvanam, Manamadurai Taluk, Sivagangai District.
16. Thiru.P.Malairaj,
S/o. Balusamy,
No.9/2, Captain Lakshmi Street,
Nattarasan Kottai, Sivagangai Tk., Sivagangai District.
17. Thiru.A.Radhakrishnan,
S/o. Adaikalam,
No.28/49/2, Gandhi Nagar First Street,
Pudukkottai, Pudukkottai District.
18. Thiru.S.Rajagopal,
S/o. Shanmuga Devar,
No.299, Agraharam, Karaiyoorgramam,
Thirupathur Taluk, Sivagangai District.
7
Tamil nadu government gazette extraordinary
19. Thiru.R.Rajiv,
S/o. Radhakrishnan,
No.106, Mamarathu Street,
Therbhogi Village, Ramanathapuram District.
20. The Returning Officer,
Sivagangai Parliamentary Constituency,
Sivaganga.
….. Respondents/Respondents
This Original Application praying that this Hon’ble Court be pleased to dismiss
the Election Petition.
The above Election Petition having been heard on 12/10/2020 in the presence
of Mr. Rajendra Kumar for Mr. G. Saravana Kumar, advocate for the Election
Petitioner/1st Respondent, Mr. G.Masilamani and Mr.R.Thiagarajan learned Senior
Counsels for Mr. T. Sathiyamoorthy advocate for the 1st respondent, Mr.D.Ashok
Kumar advocate for the 2nd respondent and Mr.G.Murugendran advocate for the
19th respondent herein and the respondents 3 to 18 not appearing in person
or by advocate and upon reading the Petition, Affidavit, Reply affidavit of the
Election Petitioner, Counter affidavit, Reply Statement to the counter affidavit of the
19th respondent and Rejoinder of the P.Chidambaram to the reply of the Election
Petitioner and the counter affidavit of the 19th respondent filed herein and upon
pursuing the Evidence adduced herein and the Exhibits marked thereon and this
court having observed that the pleadings do not indicate the errors made either
with reference to the number of ballot papers, table or round, in which, mistake
occurred. Expecting the vague statements, the Election Petitioner has not given any
testimony through witness and this court having stood over for consideration till this
day and coming on this before this Madurai Bench of Madras High court through
video conferencing for orders in the presence of the above said advocates and
It is ordered as follows:-
1.
That the Election Petition No.5 of 2009 be and is hereby dismissed.
2.
That the Original Application No.18 of 2013 be and is hereby closed.
3.
That the parties shall bear their own costs.
WITNESS
THE
HON’BLE
MR.
JUSTICE
SANJIB
BANERJEE,
CHIEF JUSTICE HIGH COURT AT MADRAS AFORESAID, THIS THE 16TH DAY OF
FEBRUARY 2021.
SD./-
ASSISTANT REGISTRAR
Origianl Side-II.
//CERTIFIED TO BE TRUE COPY//
DATED THIS THE 3RD DAY OF MARCH 2021
SD./-
COURT OFFICER (O.S)
From 25th Day of September 2008 the Registry is issuing certified copies of
the Orders/Judgements/Decrees in this format.
8
Tamil nadu government gazette extraordinary
pk-26/02/2021
ELP.No.5 of 2009
and
OA.No.18 of 2013
DECREE
DATED:16/02/2021
THE HON’BLE MRS.JUSTICE
PUSHPA SATHYANARAYANA
FOR APPROVAL: 01/03/2021
APPROVED ON: 01/03/2021
Copy to:-
1. The Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi – 110 001.
2. The Returning Officer,
Sivaganga Parliamentary
Constituency,
Sivaganga.
3. The Assistant Registrar,
Original Side,
Madras High Court,
Chennai – 600 104.
9
Tamil nadu government gazette extraordinary
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION)
TUESDAY, THE 16TH DAY OF FEBRUARY 2021
THE HON’BLE MRS.JUSTICE PUSHPA SATHYANARAYANA
ELP.No.5 of 2009
and
OA.No.18 of 2013
ELP No.5 OF 2009
Thiru.R.S.Raja Kannappan,
S/o. Samia Pillai,
No.32/17, Pudhur Road Main,
Sivagangai District
….. Petitioner
-Vs-
1. Thiru.P.Chidambaram,
S/o. Palaniappan,
No.87/1-54, Mothilal Street,
Kandanur, Karaikudi Taluk,
Sivagangai District.
2. Thiru.M.G.Devar,
S/o. Mahalinga Devar,
No.3/102, Karuppasamy Koil Street,
Villoor Post, Villoor.
3. Thiru.K.Sakthivel,
S/o. Karuppaiah,
No.82/1, 5th Street,
Padmanabha Nagar,
Adyar, Chennai.
4.
Smt.Barwatha Regina Papa,
W/o. Sundar,
No.2/868, Vanavil,
Vaiduriyam Veedhi,
Navarathina Nagar,
Karaikudi.
5.
Thiru.R.A.Ramasamy,
S/o. Andi,
No.75/54, Jawaharlal Puram,
Thirumalpuram Post, Madurai.
10
Tamil nadu government gazette extraordinary
6.
Thiru. J.Abupacker Sithik,
S/o. Mohamed Jalaluddin,
No.3, Meenakshi Amman Koil Street,
Karaikudi.
7. Thiru.Aru. Alagappan,
S/o. Arumugam,
No.3, Meenakshi Amman Koil Street,
Keezha Mel Street, Karaikudi.
8. Thiru.P.L.Alagappan,
S/o. Palaniappan,
No.102, Rajaji Street,
O. Siruvayal, Karaikudi Taluk.
9. Thiru. V.S.K.S. Anandhan,
S/o. Sonai Muthu,
No.43, Periya Unjinai,
Devakottai Taluk.
10. Thiru.K.Samudram Kalaimani,
S/o. Ganapathy ServaI, Nadu Samudhiram
Salaigramam, Illayankudi Taluk,
Sivagangai District.
11. Thiru.K.Karmegam,
S/o. Karuppaiah,
No.146, Peria Kannanoor,
Kannanoor Post, Sivagangai Taluk,
Sivagangai District.
12. Thiru.P.Gunasekaran,
S/o. Pappu,
No.8/1/133, Muzhuveeran Street,
Singampunari, Thirupathur Taluk,
Sivagangai District.
13. Thiru.S.Chidambaram,
No. 4/148, N.A.Periakottai,
Sivagangai Taluk, Sivagangai District.
14. Thiru.M.Arimalam Thiyagi Subramanian Mutharaiyar,
S/o. Muthukaruppan,
No.179/71, Meenakshipuram Road,
Arimalam Post, Thirumayam Taluk,
Pudukkottai District.
15. Thiru. M.Thoothai Selvam,
S/o. Marutha Muthu,
No.3, Bungalow Street,
Thirupuvanam, Manamadurai Taluk,
Sivagangai District.
11
Tamil nadu government gazette extraordinary
16. Thiru.P.Malairaj,
S/o. Balusamy,
No.9/2, Captain Lakshmi Street,
Nattarasan Kottai, Sivagangai Tk.,
Sivagangai District.
17. Thiru.A.Radhakrishnan,
S/o. Adaikalam,
No.28/49/2, Gandhi Nagar First Street,
Pudukkottai, Pudukkottai District.
18. Thiru.S.Rajagopal,
S/o. Shanmuga Devar,
No.299, Agraharam, Karaiyoorgramam,
Thirupathur Taluk, Sivagangai District.
19. Thiru.R.Rajiv,
S/o. Radhakrishnan,
No.106, Mamarathu Street,
Therbhogi Village,
Ramanathapuram District.
20. The Returning Officer,
Sivagangai Parliamentary Constituency,
Sivaganga.
….. Respondents/Respondents
* R20 struck off from Respondents on 08.12.2013 in OA.No.911 of 2012 in
ELP No. 5 of 2009.
This Election Petition praying that this Hon’ble Court be pleased to
(i)
Declare
the
election
of
the
Returned
candidate,
namely
Thiru P.Chidambaram, the 1st respondent herein from No.31 Sivaganga Parliamentary
Constituency, (Tamil Nadu, India) in the election held on 13.05.2009 (in which results
have been declared on 16.05.2009) as void.
(ii) Order re-securing the voting results recorded in the Electronic Voting
Machine used for the counting in No.31, Sivaganga Parliamentary Constituency,
(Tamil Nadu, India) in the election held on 13.05.2009.
(iii) Order recounting of the votes polled in the election to No.31, Sivaganga
Parliamentary Constituency, (Tamil Nadu, India) held on 13.05.2009 (in which results
have been declared on 16.05.2009).
(iv) Order recounting of the votes polled in the Alangudi Assembly segment of
No.31, Sivaganga Parliamentary Constituency in the election held on 13.05.2009 (in
which results have been declared on 16.05.2009).
(v) Declare the Petitioner as duly elected from No.31, Sivaganga
Parliamentary Constituency, (Tamil Nadu, India) in the election held on 13.05.2009 (in
which results have been declared on 16.05.2009).
(vi) Direct the First Respondent to pay the costs of the petition.
12
Tamil nadu government gazette extraordinary
OA.No.18 OF 2013
P.Chidambaram,
S/o. Palaniappan,
No.87/1-54, Mothilal Street,
Kandanur, Karaikudi Taluk,
Sivagangai District.
….Applicant/1st Respondent
-Vs-
1.
Thiru. R.S.Raja Kannappan,
S/o. Samia Pillai,
No.32/17, Pudhur Road – Main,
Sivagangai District.
….Respondent/Petitioner
2.
Thiru.M.G.Devar,
S/o. Mahalinga Devar,
No.3/102, Karuppasamy Koil Street,
Villoor Post, Villoor.
3.
Thiru.K.Sakthivel,
S/o. Karuppaiah,
No.82/1, 5th Street, Padmanabha Nagar,
Adyar, Chennai.
4. Smt.Barwatha Regina Papa,
W/o. Sundar,
No.2/868, Vanavil, Vaiduriyam Veedhi,
Navarathina Nagar, Karaikudi.
5. Thiru.R.A.Ramasamy,
S/o. Andi,
No.75/54, Jawaharlal Puram,
Thirumalpuram Post, Madurai.
6. Thiru. J.Abupacker Sithik,
S/o. Mohamed Jalaluddin,
No.3, Meenakshi Amman Koil Street,
Karaikudi.
7. Thiru.Aru. Alagappan,
S/o. Arumugam,
No.3, Meenakshi Amman Koil Street,
Keezha Mel Street, Karaikudi.
8. Thiru.P.L.Alagappan,
S/o. Palaniappan,
No.102, Rajaji Street,
O. Siruvayal, Karaikudi Taluk.
13
Tamil nadu government gazette extraordinary
9. Thiru. V.S.K.S. Anandhan,
S/o. Sonai Muthu,
No.43, Periya Unjinai, Devakottai Taluk.
10. Thiru.K.Samudram Kalaimani,
S/o. Ganapathy Serval, Nadu Samudhiram
Salaigramam, Illayankudi Taluk,
Sivagangai District.
11. Thiru.K.Karmegam,
S/o. Karuppaiah,
No.146, Peria Kannanoor,
Kannanoor Post, Sivagangai Taluk,
Sivagangai District.
12. Thiru.P.Gunasekaran,
S/o. Pappu,
No.8/1/133, Muzhuveeran Street,
Singampunari, Thirupathur Taluk,
Sivagangai District.
13. Thiru.S.Chidambaram,
No. 4/148, N.A.Periakottai,
Sivagangai Taluk, Sivagangai District.
14. Thiru.M.Arimalam Thiyagi Subramanian Mutharaiyar,
S/o. Muthukaruppan,
No.179/71, Meenakshipuram Road,
Arimalam Post, Thirumayam Taluk,
Pudukkottai District.
15. Thiru. M.Thoothai Selvam,
S/o. Marutha Muthu,
No.3, Bungalow Street,
Thirupuvanam, Manamadurai Taluk, Sivagangai District.
16. Thiru.P.Malairaj,
S/o. Balusamy,
No.9/2, Captain Lakshmi Street,
Nattarasan Kottai, Sivagangai Tk., Sivagangai District.
17. Thiru.A.Radhakrishnan,
S/o. Adaikalam,
No.28/49/2, Gandhi Nagar First Street,
Pudukkottai, Pudukkottai District.
18. Thiru.S.Rajagopal,
S/o. Shanmuga Devar,
No.299, Agraharam, Karaiyoorgramam,
Thirupathur Taluk, Sivagangai District.
14
Tamil nadu government gazette extraordinary
19. Thiru.R.Rajiv,
S/o. Radhakrishnan,
No.106, Mamarathu Street,
Therbhogi Village, Ramanathapuram District.
20. The Returning Officer,
Sivagangai Parliamentary Constituency,
Sivaganga.
….. Respondents/Respondents
This Original Application praying that this Hon’ble Court be pleased to dismiss
the Election Petition.
The above Election Petition having been heard on 12/10/2020 in the presence
of Mr. Rajendra Kumar for Mr. G. Saravana Kumar, advocate for the Election
Petitioner/1st Respondent, Mr. G.Masilamani and Mr.R.Thiagarajan learned Senior
Counsels for Mr.T.Sathiyamoorthy advocate for the 1st respondent, Mr.D.Ashok
Kumar advocate for the 2nd respondent and Mr.G.Murugendran advocate for the
19th respondent herein and the respondents 3 to 18 not appearing in person or
by advocate and upon reading the Petition, Affidavit, Reply affidavit of the Election
Petitioner, Counter affidavit, Reply Statement to the counter affidavit of the 19th
respondent and Rejoinder of the P.Chidambaram to the reply of the Election Petitioner
and the counter affidavit of the 19th respondent filed herein and upon pursuing the
Evidence adduced herein and the Exhibits marked thereon and this court having
stood over for consideration till this day and coming on this before this Madurai
Bench of Madras High court through video conferencing for orders in the presence
of the above said advocates and
the court made the following order:-
The Election to No.31, Sivaganga Parliamentary Constituency for the 15th Lok
Sabha held on 13.05.2009 is the subject matter of this Election Petition.
2. The relief sought for by the Election Petitioner are to :
(a) declare the election of the returned candidate, namely,
Thiru.P.Chidambaram, the first respondent herein from No.31,
Sivaganga Parliamentary Constituency, (Tamil Nadu, India) in the
election held on 13-05-2009 (in which results have been declared
on 16-05-2009) as void ;
(b) order re~securing the voting results recorded in the Electronic Voting
Machine used for the counting in No.31, Sivaganga Parliamentary
Constituency, (Tamil Nadu, India) in the election held on 13-05-2009 ;
(c) order recounting of the votes polled in the election to No.31, Sivaganga
Parliamentary Constituency, (Tamil Nadu, India) in the election held
on 13-05-2009 (in which results have been declared on 16-05-2009) ;
(d) order recounting of the votes polled in the Alangudi Assembly segment
of No.31, Sivaganga Parliamentary Constituency, (Tamil Nadu, India) in
the election held on 13-05-2009 (in which results have been declared
on 16-05-2009) ;
15
Tamil nadu government gazette extraordinary
(e) declare the petitioner as duly elected from No.31, Sivaganga
Parliamentary Constituency, (Tamil Nadu, India) in the election held
on 13-05-2009 (in which results have been declared on 16-05-2009) ;
(f) direct the first respondent to pay the costs of the petition ; and
(g) grant such other reliefs as this Court may deem fit and proper.
3. The facts of the case, as has been culled out from the election petition, in
a nutshell, run infra:
3.1. The Election Commission of India issued Notifications charting out
the Election Schedule for the 15th Lok Sabha, as per which, for the State of
Tamil Nadu, filing of nominations was allowed between 20-04-2009 and
24-04-2009, scrutiny of which was to be held on 27-04-2009; the date of election
was scheduled on 13-05-2009, while counting was to be held on 16-09-2009. The
District Collector of Sivaganga District, who was the Returning Officer for No.31
Sivaganga Parliamentary Constituency, after scrutiny accepted the nomination papers
of the Election Petitioner and the respondents herein.
3.2. The petitioner was the candidate of the All India Anna Dravida Munnetra
Kazhagam (AIADMK) party and thus, contested in Two Leaves Symbol, while the
first respondent, being the official candidate of the Indian National Congress (INC)
party, contested in Hand Symbol, having nominated by his party on 22-04-2009. One
Mr.S.Kumaravel was the Election Agent of the petitioner, while one Mr.Karuppiah
was the Election Agent of the first respondent.
3.3. According to the petitioner, the first respondent was the sitting Member
of the Parliament from the same constituency for the 14th Lok Sabha and was the
Union Home Minister.
3.4. The Election Petitioner submitted that the Returning Officer declared
that the first respondent secured 3,34,348 votes, while the petitioner said to have
been secured 3,30,994 votes and thus, the first respondent said to have been elected
by a margin of 3,354 votes.
3.5. At this juncture, it is to be stated that the Election Petitioner made some
allegations against the first respondent and his son. However, those paragraphs
were struck off by this Court on 07-06-2012 in A.No.3428 of 2011, which was taken
out by the first respondent under Order 6 Rule 16 and Order 7 Rule 11.
3.6. The petitioner alleged in paragraph 6 of the Election Petition that the
first respondent, who was also the Union Finance Minister, has thorough knowledge
about the micro financing and thus, one of the Women Self-Help Groups (SHGs)
in the said Constituency, namely, Annai Kasthuribai Thondu Niruvanam, which has
about 4000 to 5000 women as its members, was roped in for illegally funding to its
members into their bank accounts for casting votes for the first respondent. The first
respondent participated in a meeting organized by the said SHG on 12-04-2009. Since
complaints had been thronging from all quarters about this malpractice, including
the one sent by the Election Petitioner on 23-04-2009 to the Chief Electoral Officer,
Chennai, the strategy of the first respondent was changed to giving away tokens
to the ring leaders of these SHGs for distribution among the members, who can
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Tamil nadu government gazette extraordinary
produce it to receive Rs.500/~ per woman member. The leader of the SHG was
given Rs.20 lakhs for this purpose on 03-05-2009 at Kandanur by the son of the
first respondent, according to the petitioner. When one another leader of another
SHG called Mrs.Andal was offered money, she turned down the same and she, in
turn, informed the same to the Election Petitioner only after counting of votes.
3.7. In paragraph 7 of the Election Petition, the petitioner narrated about
the alleged distribution of money to the voters on 23-04-2009 around 11 p.m., near
Pechiamman Temple at Ilayangudi Taluk, Vadakkusalaigramam by one Mr.Malayasia
Pandian and 23 others by arriving in four cars, on behalf of the first respondent.
The Election Petitioner stated that the witnesses belonging to his party had given a
complaint of even date to police and election officials, who seized the money. The
Election Petitioner also said to have given a complaint to the Chief Electoral Officer,
Chennai. It was widely reported in print and electronic media. But the complaints
and the seizure were burked at the instance of the first respondent, according to
the petitioner.
3.8. Similar narration was made in paragraph 9 about the distribution of
money to the voters by around 40 women cadres of the INC party, who came by two
vans at Amaravathipudhur village in Karaikudi Taluk and went to door to door and
gave Rs.500/~ kept neatly in a fancy leather bag on 27-04-2009 at about 10.00 a.m.,
on behalf of the first respondent. It is stated that one Mr.O.L.Chelliah of AIADMK
party, when campaigning on that day near Amaravathipudhur found that and based
on the information given by him, the police Inspector Mr.Sivakumar came to the
scene. It is presumably stated by Mr.O.L.Chelliah that the Inspector was influenced
by the first respondent not to register the said complaint.
3.9. The Election Petitioner stated in paragraph 10 that on 02-05-2009
around 10.00 a.m., one Rajendran, who runs a Youth Social Service Organization
in Kothari village, and others distributed money to women voters on the instructions
of the first respondent and the complaint of even date to the Chief Electoral Officer,
Chennai, also availed no action.
3.10. The petitioner submitted in paragraph 11 that on 06-05-2009 at
about 8.00 a.m., when Mr.Chelliah was campaigning in Sakkavayal village, it was
found that five persons arrived in a red colour car bearing registration No.TN 30
AD 1972 and distributed money in covers for casting vote to the first respondent,
which were kept in the car. Mr.Chelliah gave a complaint to Sakkotai Police and
the Sub Inspector attached to that station registered a case in Crime No.151/2009
for the offence under Section 171(B) IPC and seized the car with cash. It is also
alleged that the first respondent having come to know about this engineered a false
complaint from the owner of the car as if, when he parked the car in the village
and away from the car, the window was broken and some gold jewels were stolen.
The said complaint which was taken on file in Crime No.152/2009 for the offences
under Sections 147, 188, 427 and 379(NP) IPC only due to the misuse of the official
position by the first respondent.
3.11. In paragraph 12 of the Election Petition, the Election Petitioner stated
about incident that took place on 12-05-2009 around 7.30 p.m., in Rajagambeeram
Village, Manamadurai Taluk in the subject Constituency. It is claimed by the petitioner
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Tamil nadu government gazette extraordinary
that one Mr.Anbhazhagan, who was the former Member of Parliament and also the
State Legislature and his prominent campaigner got an information that the son
of the first respondent was distributing cash to voters and immediately, he along
with other party cadres rushed to the spot around 8.00 p.m., where, it was found
that the son of the first respondent and 24 other known and 10 unknown persons
to the said Anbhazhagan were disturbing cash to voters keeping them in two cars
bearing registration Nos. TN 07 AU 9788 (Scorpio) and TN 45 AN 1000. On seeing
Anbhazhagan, the son of the first respondent brutally attacked him with a stick and
thereby caused grievous injuries on his forehead and nose. Some more people
from the first respondent-s group also attacked him. It is further alleged by the
petitioner that Anbhazhagan was rescued by his party functionaries and they went
to Manamadurai Police Station to lodge a complaint, but, the Inspector of Police
one Ramesh refused to take their complaint and also to send the injured to the
hospital with police memo, which was only at the instance of the first respondent.
The petitioner went on to state that the first respondent came to the said police
station at about 8.30 p.m. with his supporters and exhorted the police to arrest
Anbhazhagan. Hence, Anbhazhagan was taken to Meenakshi Mission Hospital in
Madurai for specialized treatment, where, he was admitted as an in-patient in the
Intensive Care Unit (ICU) and only after receipt of the information given by the
said hospital, it was construed as a Medico-Legal case. It is also claimed by the
petitioner that based on the undue influence of the first respondent by personally
coming over the Manamadurai Police Station, a case in Crime No.317/2009 for the
offences under Sections 147, 148, 323, 324 and 506(ii) IPC and under Section 3
of the Tamil Nadu Public Properties Damage and Loss Act was registered against
the AIADMK partymen including Mr.Anbhazhagan on the false complaint given
by the Driver of the son of the first respondent. According to the petitioner, since
13-05-2009 was the election day, there should be no campaign on 12-05-2009, but the
first respondent sent his son and others with money, which was meant for distribution
to voters, i.e., procuring votes. A private complaint was filed by Mr.Anbhazhagan
on the file of the Judicial Magistrate, Manamadurai, in Crl.M.P.No.8960 of 2009.
3.12. Besides the above instances of corrupt practices, the election petitioner
has also raised yet another issue of irregularities in counting of votes and declaration
of results. It is stated that the Sivaganga Parliamentary Constituency comprises
of six Assembly segments, namely, Alangudi, Thirumayam, Karaikudi, Tirupathur,
Sivagangai and Manamadurai. The counting of votes was scheduled to be held
on 16.05.2009. The postal ballots were first counted before the Returning Officer,
wherein, the petitioner had secured 150 votes and the first respondent secured 653
votes. Later, around 12 p.m., the petitioner claims to have received information from
the media that he was generally leading over all the candidates and he was also
set to win in the elections as per the news reports. The reliance was placed on one
of the online editions of a news daily that the petitioner was elected by a margin of
3,552 votes. According to the petitioner, in most of the counting halls, the counting
was over even by 12:30 p.m. However, the Returning Officer had not issued the
necessary certificate. Upon enquiry, the Returning Officer had stated that he was yet
to receive formal signed official reports from the Assistant Returning Officers. In the
meantime, the Indian National Congress led United Progressive Alliance had won
the elections and that they were to form the next Government. Then the petitioner
observed that there is a peculiar feature, namely, that the Returning Officer’s board
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was blank and it did not display the round-wise results, as mandated by the rules.
Even the pressmen were not allowed to come inside the hall to update the results
round-wise. The normal procedure or practice of writing the round-wise declaration
on the notice board and publicly announce the round-wise results through Public
Address System was also not done. When the same was questioned, the Returning
Officer gave an evasive reply. The Election Tahsildar also gave a specious explanation
that it was by mistake the declaration through Public Announcement System was
not arranged for.
3.13. Around 4.30 p.m. on that day, i.e., on 16-05-2009, the election results
all over the country were declared, but strangely, in the Sivaganga constituency, it
was only stated that the first respondent was leading. According to the petitioner,
during that time the manipulation in the counting of votes was going on. As there
was a confusion, the petitioner directed his Election Agent to pursue the request for
recount and accordingly, the Election Agent Mr.Kumaravel pressed for recount with
substantial points. The Returning Officer acknowledged the complaint of Mr.Kumaravel
and said the same would be placed before the Election Commission and that he will
act as per the orders of the Election Commission. However, the Returning Officer
without passing any order on the petition for recount, straight away declared the first
respondent as elected and handed over the certificate to his agent Mr.Karuppiah
around 8:30 p.m. in the night as if, the first respondent had won the election by a
margin of 3,354 votes. It is the allegation of the petitioner that till the date of filing
of the election petition, no order was passed by the Returning Officer on the petition
filed for recount on 16-05-2009.
3.14. The petitioner further alleged that the first respondent, who was the
Union Home minister, in connivance with the Returning Officer and other election
officials had manipulated the votes counted in the 11th, 12th, 13th, 14th and 15th
rounds in Alangudi assembly segment and added the votes secured by the petitioner
to the count of the first respondent. But for the above said manipulation, the
petitioner would have been declared as “elected” by a margin of 7,034 votes. The
declaration of the results only at 8:30 p.m. was the reason to have enough time for
manipulating the results. The prolonged counting process deliberately without any
just and sufficient cause vitiates the election and hence, it has to be declared as
void under Section 100(1)(d)(iii) and (iv) of the RP Act and Rule 60 of the Conduct
of Election Rules, 1961.
3.15. Thus, the petitioner had filed the election petition on the grounds of
corrupt practices committed by the first respondent and the infirmities in the counting
process and seeks declaration of the election as void and other reliefs.
4. The election petition is resisted by the first respondent contending that the
petition itself is not in accordance with the provisions of Part VI of the RP Act. The
election petition did not satisfy the requirements of Sections 80, 83 and 100 of the
RP Act. The allegation that the first respondent took part in the meeting organised
by the SHG Annai Kasturibhai Thondu Niruvanam on 12-04-2009 is denied, as the
first respondent did not have any knowledge about the above said establishment.
Besides, on 12-04-2009, the Election Commission had not issued the notification of
elections and the first respondent was not a candidate as on 12-04-2009. Hence,
according to the first respondent, the allegation relating to 12-04-2009 incident is
totally irrelevant to this election petition.
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Tamil nadu government gazette extraordinary
4.1. The allegation of collecting the bank account details of women SHG in
order to park illegal funds in their accounts for purchasing the votes of the members
is also denied by the first respondent, as the said allegation is purely speculative
and it does not constitute the allegation of corrupt practice. The first respondent
also denied knowledge about the complaint dated 23-04-2009, which also does not
contain any specific corrupt practice. The first respondent also denied the allegations
of giving money to the leaders of SHGs, without any details such as date, time,
place, etc., for procuring votes by his son and also categorically stated that his son
was not his Election Agent and he never instructed anyone in particular, his agents
to distribute money to anyone.
4.2. According to the first respondent, the allegations of bribe given at various
places without naming who were bribed for voting is nothing, but a concocted story
and there is no allegation that it was given with his consent. The first respondent
categorically denied the allegation of distribution of money and the other connected
incidents at Vadakkusalaigramam village, Ilayangudi Taluk, Amaravathipudur village,
Karaikudi Taluk, Kothari village near Pallatthur and Sakkavayal village, Karaikudi
Taluk.
4.3. The first respondent also stoutly denied the allegations made against
his son that he attacked Anbhazhagan at Rajakambeeram and alleged that the cars in
which his son and other partymen were travelling were damaged by Mr.Anbhazhagan
and his mob. The first respondent also claimed that when he got information that his
son and others were surrounded by AIADMK workers, he was near Ilayangudi and
he immediately rushed to Rajagambeeram. When he reached the spot, he was told
that his son and other workers were taken to Manamadurai Police Station, where
the Driver lodged a complaint. The inspector assured the first respondent that action
would be taken in accordance with the law and thereafter the first respondent left the
police station leaving the damaged vehicles and he did not influence the Inspector.
The first respondent also stated that the private complaint lodged by Mr.Anbhazhagan
was rejected by the learned Judicial Magistrate and that, it is claimed by the first
respondent that no material was placed by the Election Petitioner to attract Section
123 of the RP Act.
4.4. The first respondent denied all the allegations made against him
with respect to Counting process. The first respondent claimed that he visited the
counting centre at 8.00 a.m. and left in about half-an-hour from there and thereafter
he came back to the centre at about 4.00 or 4.30 p.m., wherein, he was informed
by the Returning Officer that he was leading. He has also stated that by the time
the counting was over and tallying, checking and other paperwork were going on
and hence, he left the centre about 5:30 p.m.
4.5. The first respondent further claimed that the petition for recount
submitted by Mr.Kumaravel is not a valid application under Rule 63 of the 1961
Rules and denied the allegation that no order is passed on the said representation,
as the Returning Officer rejected the request vide order dated 16-05-2009. It is
also claimed by the first respondent that the allegations made in paragraph 16 of
the Election Petition are bereft of any particulars and without any valid supporting
document.
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Tamil nadu government gazette extraordinary
4.6. The first respondent also denied the allegation that the votes that were
counted in 11th to 15th rounds in Alangudi assembly segment were manipulated
stating that besides, the Returning Officer, there were Election Observers appointed
by the Election Commission witnessing the entire episode of counting process and
the same could not be done as alleged by the Election Petitioner.
4.7. It is claimed by the first respondent that there is no allegation that the
result of the election has been materially affected in so far as the returned candidate
is concerned, but on the other hand, the allegations made in the election petition
do not constitute a ground under Sections 100(a)(d) and 101 of the RP Act.
4.8. Though the petitioner had referred to bribe money and corrupt
practice of bribery being committed by the first respondent, the same are also not
in accordance with Section 123 of the RP Act.
5. Supporting the cause of the Election Petitioner and reiterating the
allegations made in the Election Petition, a reply statement was filed by the nineteenth
respondent.
6. On the above pleadings, the following issues were framed on 19.10.2012
:
(i) Whether the allegations of corrupt practice made against the first
respondent/Returned candidate constitute corrupt practice and
whether it would constitute a ground to declare the election of the
first respondent as void.
(ii) Whether the election petition is liable to be dismissed on the ground
that it does not satisfy the requirements of section 80, 83 and 100
of the Representation of People Act, 1951.
(iii) Whether counting of votes polled in Sivaganga Parliamentary Con-
stituency was not done in accordance with the Act, the rules made
thereunder and the instructions of the election commission as al-
leged in the election petition.
(iv) whether the first respondent in connivance with the Returning
Officer/ Election Officials manipulated the votes in 11th to 15th
rounds in Alangudi Assembly segment in order to ensure the
victory or the first respondent.
(v) whether the 19th respondent has locus standi to file a counter and
that whether he should be transposed as a petitioner and whether
he is entitled to cross-examine the witnesses and examine himself.
(vi) Whether the election of the first respondent/Returned candidate be
declared void.
(vii) Whether the election petitioner could be declared as a duly elected
candidate from No.31, Sivaganga Parliamentary Constituency,
Tamilnadu, India in the election held on 13-04-2009.
(viii) to what other reliefs, the election petitioner is entitled to ?
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Tamil nadu government gazette extraordinary
7. Prior to the framing of issues, A.No.3428 of 2011 was filed by the first
respondent herein for rejection of the plaint under Order 7 Rule 11 and also for
striking off the pleadings under Order 6 Rule 16 of the Code of Civil Procedure (in
short, “the CPC”). While disposing of this application, this Court vide order dated
07-06-2012 had negatived the relief sought for under Order 7 Rule 11, however,
allowed the prayer made under Order 6 Rule 16, by striking off the paragraphs 4
and 5 in the election petition. The relevant portion of the said order is as follows:
“36. In fine, the application filed by the applicant is disposed of to
the extent indicated above, namely,
(a) that the allegations made in Paragraph Nos.4 and 5 alone are
liable to be struck out. However, the other averments made in the Election Petition
regarding the corrupt practice pertaining to the dispatch of money etc., and also
the allegations of irregularities or illegalities committed on the date of counting as
alleged in the Election Petition which the applicant wants it to be struck off do not
require to be struck off at this stage.
(b) As regard the prayer made under Order VII, Rule 11 CPC, it cannot
be accepted and the contentions raised in that regard are liable to be rejected and
accordingly rejected.”
8. The learned counsel for the petitioner, at the time of arguments, had only
pressed for the prayers in (i), (iii) and (iv) of the petition. Hence, the prayer (v)
seeking to declare the petitioner as duly elected from No.31 Sivaganga Parliamentary
Constituency in the election held on 13-05-2009, in which, the results have been
declared on 16-05-2019 has become infructuous due to passage of time.
9. As stated above, the 19th respondent, who was also one of the unsuccessful
candidates, has been made as party to the proceedings. The 19th respondent
has not filed any independent Election petition challenging the success of the first
respondent. As the 19th respondent has not availed his right to file election petition,
he cannot not be allowed to challenge the result of the election by filing a counter
affidavit and supporting the case of the petitioner. Therefore, applications were filed
by the first respondent herein in O.A.Nos.925 to 928 of 2012. The said applications
were filed (i) not to permit the 19th respondent in the election petition to cross
examine any of the witnesses of the election petitioner and of the first respondent
during the trial of the election petition ; (ii) not to permit the 19th respondent in the
election petition to examine any witness on his side to support the pleadings and
prayer in the election petition ; (iii) to declare that the 19th respondent has no role
to play in the trial of the election petition in so far as the relief of declaration that the
election of the first respondent as void ; and (iv) to reject the counter statement filed
by the 19th respondent in Election Petition No.5 of 2009 respectively. In the said
applications, this Court vide order dated 07-01-2013 held that the 19th respondent
has got no right to cross-examine the election petitioner or his witnesses on the
allegation of corrupt practice, however, the 19th respondent can participate in the
trial in support of the additional relief of declaration that the election petitioner shall
be declared as the successful candidate. Further, he was also declined the relief
of cross-examining the returned candidate or his witnesses and he cannot support
the case of the election petitioner on corrupt practices, however, he was given
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Tamil nadu government gazette extraordinary
permission only to let in evidence with regard to the additional relief of declaration
sought for by the election petitioner by declaring him as the successful candidate.
10. Though such permission was granted to the 19th respondent to that extent,
since the petitioner himself had given up the relief (v), the said relief granted by this
Court has become unavailable to the petitioner and hence, it is not possible for the
19th respondent to harp on the same.
11. During the course of the trial, the election petitioner examined himself as
P.W.1, besides examining Mr.S.Kumaravel as P.W.2; Mr.Karuppiah as P.W.3 and
Mr.Anbhazhagan as P.W.4. The Election Petitioner marked the following exhibits,
namely:
Sl.
No.
Ex.No./Date
Description of the document
1
P.1/03.03.2009
Copy of Letter issued by the Chief Electoral Officer
2
P2/23.04.2009
Copy of Authorisation letter issued by the petitioner
appointing Mr.S.Kumaravel as the Election Agent in the
Parliament Election 2009
3
P3/23.04.2009
Copy of the complaint of the petitioner to the RO,
Sivagangai Parliamentary Constituency complainging the
attempt to trace the bank account of the Women Self Help
Groups by the Congressmen to park money
4
P4/--
Fax OK report of complaint given to Returning Officer
5
P5/--
Token that was issued to the voters for collecting money
on its production
6
P6/24.04.2009
Copy of complaint given by the petitioner to the Chief
Electoral Officer by fax about Vadakkusalaigramam Village
incident
7
P7/--
Fax OK report of complaint given to Chief Electoral Officer
8
P8/25.04.2009
Dina Malar Tamil Daily Newspaper having the report of
Vadakkusalaigramam Village incident
9
P9/27.04.2009
Copy of the complaint given by O.L.Chellaiah to the
Inspector of Police, Karakudi Police Station
10
P10/16.5.2009
Original Acknowledgment by the Returning Officer for
receipt of petition from the petitioner for recount
11
P11/16.5.2009
Hard copy of Online Hindu report and Yahoo India
23
Tamil nadu government gazette extraordinary
12
P12/15.5.2009
I.D. Card of the counting agent Mr.Karuppiah
13
P13/23.4.2009
Copy of representation made to the Chief Electoral
Officer complaining about the inaction of officials for the
Vadakkusalaigramam village incident with fax OK report
14
P14/2.5.2009
Copy of complaint given by Mr.S.Kumaravel on behalf of
the petitioner to the Chief Electoral Officer regarding the
Kothari Village incident with fax OK report dated 3-5-2009
15
P15/13.5.2009
Copy of complaint of Mr.Anbhazhagan given to the
Inspector of Police, Manamadurai Police Station
16
P16/12.5.2009
Copy of the FIR in Crime No.317/2009
11.1. The first respondent examined himself R.W.1.
11.2. The Returning Officer was examined as C.W.1 and the following
documents were marked:
Sl.
No.
Ex.No./Date
Description of the document
1
C1/16.05.2009
Copy of the Proceedings of the Returning Officer,
31, Sivagangai Parliamentary Constituency in
Roc.No.E1/6364/2009, dated 16-05-2009
2
C2/16.05.2009
Copy of communication sent by the Principal
Secretary, Election Commission of India in
No.470/TN-HP/2009, dated 16-05-2009
3
C3/--
Copy of the Information Sheet on Counting Centres
4
C4/11.01.2007
Instructions for Facilities at Counting Centres
and Management of the Counting Process
issued by the Election Commission of India in
No.470/2007/PLN-1
5
C5/21.05.2009
Communication of the Chief Electoral Officer & Addl.
Chief Secretary to Government, Public (Elections)
Department, Secretariat, Chennai-600 009, dated
21-05-2009 and the reply of the Returning Officer,
31, Sivagangai Parliamentary Constituency in
Roc.No.E1/6364/2009
6
C6/18.09.2009
Communication of the Chief Electoral Officer
&
Addl.
Chief
Secretary
to
Government,
Public
(Elections)
Department,
Secretariat,
Chennai-600 009, dated 18-09-2009 to the
Collector, Sivaganga District, Sivanganga.
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Tamil nadu government gazette extraordinary
12. Heard the arguments advanced on behalf of the Election Petitioner and
the nineteenth respondent at length and also the reply arguments advanced by the
learned Senior Counsel appearing on behalf of the first respondent.
13. In the Election petition there were five instances of corrupt practices alleged
against the first respondent. Before the said instances, the Election Petitioner stated
about the illegal parking of money using the official position of the first respondent as
the former Union Home Minister. According to the petitioner, the election agents of
the first respondent were aware of the activities and the capacity of women SHGs to
garner election support. Thus, the agents were collecting the bank accounts details
of these SHGs in order to park illegal funds in their accounts for distributing to the
voters later. The said fact was made known to the petitioner by one Andal, who run
another SHG. As the petitioner got the information about the same only after the
counting of votes was done, he could not lodge a complaint earlier.
14. Though there were five instances narrated herein below, at the time of
arguments, as stated above, learned counsel for the petitioner had given up the
first four instances, for want of evidence as those instances were only based on
hearsay. Therefore, the only allegation of corrupt practice remains to be discussed
is the incident that had taken place on 12-05-2009 at Rajagambeeram village in
Sivaganga Parliamentary Constituency. The said other instances given in the Election
Petition are
(i) That one Malaysia Pandian and 23 others had come in particular
vehicles on 23.04.2009 around 11.00 p.m. to Pechiamman Temple at Ilayangudi
Taluk, Vadakkusalaigramam, and distributed the cash to the villagers for casting
votes in favour of the first respondent.
(ii) That on 27.04.2009 at about 10.00 a.m., one O.L.Chelliah, AIADMK
Party Union Secretary of Sakkottai Union of Sivaganga constituency went to a
village by name Amaravathipudhur of Sivaganga Parliamentary Constituency for
campaigning, where it was seen that about 40 women belonging to Indian National
Congress arrived by two vans bearing specific numbers who went to every house
and after campaigning for votes in favour of the first respondent gave Rs.500/-neatly
kept inside a fancy leather bag. A written complaint was also given on 27-04-2009.
(iii) That on 02-05-2009 around 10.00 a.m. one Rajendran, who runs the
Youth Social Service Organisation in Kothari Village near Pallathur convened a
meeting and distributed Rs.500/- to each women voter, upon the instructions of the
first respondent. Though it was stated by the petitioner that the entire event was
videographed, the same was not marked before the court.
(iv) That on 06-05-2009 at about 8.00 a.m., when Chelliah was campaigning
in Sakkavayal Village, he found that five persons came in a particular car and
distributed money in covers to the voters for casting vote to the first respondent.
(v) Finally, the incident that occurred on 12-05-2009 in Rajagambeeram
village, Manamadurai Taluk in Sivaganga, wherein, the son of the first respondent
was distributing cash to the voters on behalf of his father. When the petitioner-s other
party functionaries rushed to the spot, they found that the son of the first respondent
along with 24 others were available there in two cars with specific numbers distributing
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Tamil nadu government gazette extraordinary
cash to the voters. When it was objected to by Mr.Anbhazhagan, it is alleged that
Mr.Karthik Chidambaram, son of Mr.P.Chidambaram / the first respondent had brutally
attacked him with a stick resulting in grievous injuries on his forehead and nose.
Mr.Anbhazhagan was rescued by the AIADMK functionaries. Mr.Anbhazhagan went
to the Manamadurai Police Station for lodging a complaint against the aggressors.
However, the police refused to take the complaint and did not even care to send
the injured to the hospital, as the police officials were receiving instructions from the
first respondent. The first respondent himself had then come to the Manamadurai
Police Station around 8:30 p.m. with his supporters and insisted that the police
arrest Mr.Anbhazhagan, who was badly injured. As the injured Anbhazhagan
required immediate medical attention and the police was also refusing to accept
their complaint the injured was taken to Meenakshi Mission Hospital in Madurai for
specialised treatment. It is further stated that he was admitted as an in-patient in
Intensive Care Unit (ICU), where he was given treatment for injuries sustained on
his forehead and nose. In the meanwhile, the first respondent insisted the Inspector
of Police, Manamadurai Police Station to register a case against the said Anbalagan
in Cr.No.317 of 2009 and other AIADMK functionaries for the alleged offences
under Sections 147 148 323 324 and 506 IPC and also under Section 3 of the
Tamil Nadu Public Property Damages and Loss Act on a false complaint preferred
by one Saravanan, who is none but the Driver of the vehicle bearing No.TN 45 AN
1000 for Mr.Karthik Chidambaram, son of the first respondent.
15. It is specifically pointed out by the learned counsel that on the eve of
election, that is, on the date, when the campaigning should have been stopped as
per the election rules, the first respondent had arranged to distribute money to the
voters through his son for the purpose of procuring votes for himself. When they
were caught red-handed, the first respondent himself had come to the Manamadurai
Police Station in person to rescue his son and partymen and falsely given a
complaint against AIADMK partymen, who had come to the scene for preventing
the distribution of bribe. In fact, the injured Mr.Anbhazhagan had sent complaint
to various authorities, including the police and the Election Commission and also
a private complaint before the Judicial Magistrate Manamadurai on 04-06-2009 in
Crl.M.P.No.8960 of 2009 against Mr. Karthik Chidambaram and others.
16. The petitioner had examined himself as P.W.1 and stated in his evidence
that as per the Government Gazette Notification issued by the Election Commission
of India, on 13-05-2009 election was scheduled and according to him, the incident
happened on 12-05-2009, as P.W.4 Mr.Anbhazhagan had told the petitioner that
there were 24 persons with Karthik Chidambaram whom he could identify and 10
persons whom he was unable to identify, distributed money and when he tried to
stop, Karthik Chidambaram attacked on his forehead and nose and he was injured.
The petitioner also stated by PW.4 that Karthik Chidambaram and his partymen
came in cars bearing number TN 45 AM 1000 and TN 07 AU 9788. He has further
stated that Mr.Anbhazhagan went to the Manamadurai Police Station and lodged a
complaint. But the Inspector of Police did not take the complaint on file, whereas
when first respondent along his partymen came in person to the said police station,
he embraced his power and influenced the police not to register the complaint given
on the side of the petitioner, instead complaint given by one Saravanan Driver of
Mr.Karthik Chidambaram against Mr.Anbhazhagan for non~bailable offences was
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registered as Crime No.317 of 2009. Further, it is pointed out by the learned Senior
Counsel for the first respondent that there are contradictions in the deposition of P.W.1
in his cross-examination regarding the incident that happened in Rajagambeeram.
The petitioner had specifically admitted in the cross examination that “.... I did
not go to Rajagambiram on 12-05-2009. I do not remember where I was on
12-05-2009. On the same day, i.e. 12-05-2009 at about 9.00 P.M., I came to know
of the incidents, narrated in para 12 of my election petition through Mr.Anbalagan.
........” He had further stated that “though I received information on 12-05-2009 at 9
P.M., regarding the incidents alleged to have taken place at Rajagambiram, on the
same date, I have not filed any complaint to any other officer stating the incidents.”
Further, he has stated that “Since the affected party Mr.Anbalagan gave a complaint
in this regard to the officers, I did not give any complaint.
17. Therefore, it is argued by the learned Senior Counsel for the first respondent
that the allegations made in the election petition are only based on hearsay from
Mr.Anbhazhagan and the petitioner did not personally know of the same. In this
regard, the evidence of P.W.4 also was referred to. P.W.4 had answered about the
incident that had happened in cross examination as follows:
“.... I do not know as to which party functionaries stopped my car, but I
was stopped by the persons gathered in that spot. I was stopped at the entrance
of Rajagambiram. I do not know as to the persons who stopped my car are the
voters of Rajagambiram or not. Presently, I do not know as to how many voters
are therein Rajagambiram village. I do not know the number of the Car in which I
travelled from Manamadurai to Madurai. Nobody travelled along with me. ..... There
was no light where my car was stopped. The respondent Mr.Chidambaram was not
present in that spot. I was there at Rajagambiram for about 45 minutes. I got first
aid treatment for my injuries at Tirupuvanam and then they sent me to Meenakshi
Mission Hospital, Madurai. ....”
The oral evidence of PW 4 is totally contradictory to the pleadings as well as his
examination in chief and cross. The petitioner also deposed only from the statement
of Anbhazhagan and he did not have any personal knowledge of the incident.
18. The learned Senior Counsel for the first respondent further pointed out
that Ex.P.15, which is the copy of the complaint dated 13-05-2009 was produced to
substantiate the incident that happened on 12-05-2009, but the complaint is dated
13-05-2009. Even according to the petitioner, on 13-05-2009, P.W.4 was in ICU in
Meenakshi Mission Hospital Madurai. The private complaint alleged to have been
given on 04.06.2009 and the election petition was filed on 05.06.2009. However,
the complaint given by the Driver [Saravanan] of the son of the first respondent
was taken on file, which is marked as Ex.P.16, which was dated 12-05-2009 in
Cr.No.317 of 2009. Admittedly, P.W.4 was the only witness examined to prove the
incident that had happened in Rajagambeeram village. Even the evidence of the
said witness – P.W.4 is totally contradictory to the allegations in the election petition.
Though it was stated that Mr.Anbhazhagan could identify 24 of the persons in the
mob and 10 of them were not identifiable, in his examination, he has stated that he
is unable to name any person in the group who attacked him and who were present
in the mob. It is relevant to state that at the time of the said alleged incident, which
took placed around 8.00 p.m. in the night on 12-05-2009, there were no lights at
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the scene in Rajagambeeram. It is pertinent to note that no person as eyewitness
was examined to substantiate the said allegation of money distribution. In fact, it is
pointed out that the admission of P.W.4 that he went to Thirubuvanam Hospital for
treatment and thereafter, to Meenakshi Mission Hospital, Madurai, itself were doubted,
because neither the admission card nor the discharge summary or sheet of any of
the hospital has been produced or filed before this court. As none of the witnesses
were named in the Rajakambeeram incident, be it the Police Inspector or any other
eye witness was examined on the side of the election petitioner to prove the case
of illegal distribution of money for votes by the first respondent through his son.
19. Section 83 of the RP Act mandates that the election petition shall set
forth full particulars of any corrupt practice that the petitioner alleges, including the
full statement as much as possible, the name of the parties who alleged to have
committed the said corrupt practice, date and place of commission of each such
practice. Admittedly, the petitioner has gained knowledge only through hearsay
evidence from P.W.4 and P.W.4 also could not support the case of the petitioner
by cogent evidence. The petitioner is not able to say how many voters are there in
Rajagambeeram and how many people received the money, even presuming that the
money was given, whether it would have made a difference, as the winning margin
was more. The allegation of corrupt practice being a serious one should be proved
beyond doubt, as an election petition is a quasi-criminal proceedings.
20. It is a well-settled principle that the standard of proof required for proving
corrupt practice for all intent and purpose is equated with the standard expected in
a criminal trial. The burden of proof of the election petitioner can be said to have
been discharged only when there is a cogent and reliable evidence to prove the
charges levelled against the returned candidate. Therefore, the charges must be
proved beyond reasonable doubt and not merely by preponderance of probabilities
as in a civil action. It would be appropriate in this regard to advert to the decision
of the Hon-ble Supreme Court in Jagdev Singh V. Pratap Singh, AIR 1965 SC 183,
the relevant portion of which reads as follows:
“11. It may be remembered that in the trial of an election petition, the
burden of proving that the election of a successful candidate is liable to be set
aside on the plea that he was responsible directly or through his agents for corrupt
practices at the election, lies heavily upon the applicant to establish his case, and
unless it is established in both its branches i.e. the commission of acts which the
law regards as corrupt, and the responsibility of the successful candidate directly or
through his agents or with his consent for its practice not by mere preponderance
of probability, but by cogent and reliable evidence beyond any reasonable doubt,
the petition must fail. The evidence may be examined bearing this approach to the
evidence in mind.
25. In considering whether appeals were made to the electorate to vote
for Sidhanti on the ground of his language or to refrain from voting for Daulta on
the ground of Daulta-s language it is necessary in the first instance to ascertain the
true meaning of the expression “on the ground of his language”. By Section 123(3)
which was introduced for the first time in its present form by Act 40 of 1961, appeal
by a candidate or his agent to vote or refrain from voting for a person on the ground
of language is made a corrupt practice. This clause must be read in the light of
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the fundamental right which is guaranteed by Article 29(1) of the Constitution, for in
ascertaining the true meaning of the corrupt practice, the area of the fundamental
right of citizen must be steadily kept in view. The clause cannot be so read as
trespassing upon that fundamental right. Article 29(1) provides:
Any section of the citizen residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall have the right
to conserve the same.
The Constitution has thereby conferred the right, among others, to conserve their
language upon the citizens of India. Right to conserve the language of the citizens
includes the right to agitate for the protection of the language. Political agitation for
conservation of the language of a section of the citizens cannot therefore be regarded
as a corrupt practice within the meaning of Section 123(3) of the Representation
of the People Act. That is clear from the phraseology used in Section 123(3) which
appears to have been deliberately and carefully chosen. Unlike Article 19(1), Article
29(1) is not subject to any reasonable restrictions. The right conferred upon the
Section of the citizens residing in the territory of India or any part thereof to conserve
their language, script or culture is made by the Constitution absolute and therefore
the decision of this Court in Jumuna Prasad Mukhariya v. Lachhi Ram, (1955) 1
SCR 608 on which reliance was placed by the High Court is not of much use. In
that case Sections 123(3) and 124(5) of the Representation of the People Act as
they then stood were challenged as infringing the fundamental freedom under Article
19(1)(a) of the Constitution, and the Court in negativing the contention held that the
provisions of the Representation of the People Act did not stop a man from speaking
: they merely prescribed conditions which must be observed if a candidate wanted
to enter Parliament. The right to stand for an election is, it was observed, a special
right created by statute and can only be exercised on the conditions laid down by
the statute, and if a person wants to stand for an election he must observe the rules.
These observations have no relevance to the protection of the fundamental right
to conserve language. The corrupt practice defined by clause (3) of Section 123 is
committed when an appeal is made either to vote or refrain from voting on the ground
of the candidate-s language. It is the appeal to the electorate on a ground personal
to the candidate relating to his language which attracts the ban of Section 100 read
with Section 123(3). Therefore it is only when the electors are asked to vote or not
to vote because of the particular language of the candidate that a corrupt practice
may be deemed to be committed. Where however for conservation of language of
the electorate appeals are made to the electorate and promises are given that steps
would be taken to conserve that language, it will not amount to a corrupt practice.”
In the light of the above decision and the analysis of the materials on record,
it is evident that the election petitioner has not proved the charges of corrupt
practice against the first respondent herein by adducing clear-cut, cogent, credible
and reliable evidence.
21. The learned counsel for the Election Petitioner relied on the following
decisions in support of his case:
(i).Joseph M.Puthussery V. T.S.John, (2011) 1 SCC 503;
(ii).Virender Nath Gautam V. Satpal Singh (2007) 3 SCC 617;
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(iii).Borgaram Deuri V. Premodhar Bora, (2004) 2 SCC 227;
The above decisions have no application to the present facts supporting the
case of the petitioner.
22. The Election Petitioner sought to declare the election to be void, for which,
the Election Petitioner has to satisfy Section 100(1)(d)(ii) and (iii) of the RP Act.
Unless the ingredients of Section 100 are proved, the Election Petitioner cannot
succeed in the Election Petition.
23. Besides alleging corrupt practices, the petitioner has also pointed out certain
irregularities in counting of votes and declaration of results. For establishing the
above allegation, the election petitioner has to prove that the valid votes that were
polled in favour of the election petitioner are more than the valid votes polled to
the returned candidate for declaring the election results void or materially affected.
As discussed above, four of the allegations of the corrupt practices, i.e., alleged
incident in Ilayangudi of distributing cash to the villagers for casting votes in favour
of the first respondent ; the incident took place in Amaravathipudur alleging that
40 women belonging to INC went to every house to give money to vote for the
first respondent ; the alleged incident on 02-05-2009 in Kothari village to organise
a meeting of the party workers for the purpose of distribution of money for casting
votes ; and on 06-05-2009 at about 8.00 a.m., five persons came in a particular car
to Sakkavayal Village, distributed money in covers to the voters for casting vote to
the first respondent, were not seriously pressed by the Election Petitioner, as all of
them were based on hearsay.
24. Excepting the oral evidence of P.W.1, who is the Election petitioner himself
and PW2, who is his Election Agent, no other oral or documentary evidence
available in support of the allegations on the irregularities in counting of votes. P.W.4
Anbhazhagan was examined only for the purpose of proving the alleged incident of
corrupt practice and he has not spoken about the counting of votes. He has deposed
only up to the date of election and not after that. In so far as P.W.3 – Pazha.
Karupaiah is concerned, he was the Election Agent for the Sivaganga constituency
for the petitioner. After the chief examination for only one occasion, the said witness
has not submitted himself for cross examination and he did not appear. The learned
counsel for the petitioner has submitted before this court that P.W.3 was not likely
to come for cross examination. Hence, this Court had eschewed the evidence of
P.W.3 by an order dated 24-10-2018. In view of the above, the evidence of PW 3
is also not available to be pressed into service for the proof of the petitioner-s case.
25. Admittedly, the counting of votes commenced around 8:15 a.m. on
16-05-2009 and in most of the constituencies, the counting was over by 12:30
p.m., but only in Sivaganga, the results were declared at 8:30 p.m. Therefore, it is
alleged by the election petitioner that it had such a long time only for transferring
the votes polled in favour of the first respondent. In paragraph 15 of the election
petition, the petitioner explained about foul play in the counting process. As per the
pleading, the following allegations were made : (a) round-wise declaration of votes
were not written on the board, which is the usual practice ; (b) Pressmen were
not allowed to come inside to note down the round-wise results ; (c) there was no
Public Announcement System (PAS) which is mandatory. When it was questioned,
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the Returning Officer as well as the Election officials gave only specious explanation
that it was a mistake that the said arrangement for PAS was not made. It is alleged
that even by 4:30 p.m. the election results all over the country were announced, but
only in the Sivaganga constituency the Returning Officer was saying that the first
respondent was leading. The delay in announcement of the results is attributed to
the manipulation for transferring the votes in favour of the first respondent.
26. P.W.2-Kumaravel, who is the Petitioner-s Election Agent had raised substantial
points for re-counting before the Returning Officer, which were not considered
immediately and were placed before the Election Commission. When the petition
for recount was pending or not considered, the Returning Officer had handed over
the declaration certificate to the election agent of the first respondent declaring the
first respondent as winner by a margin of 3,354 votes. The petitioner alleged that
till the date of filing of the election petition, the Returning Officer had not passed
any order on the petition filed by P.W.2 dated 16-05-2009 for a recount. Even in
the Alangudi segment, the same was the case that the Assistant Returning Officer
(ARO) did not write the round-wise votes secured by each of the candidates. In this
regard, it is argued by the learned Senior Counsel for the first respondent that the
allegations made by the petitioner are all false and they do not constitute a ground
for offence under Section 100(1)(d)(iii) of the RP Act. No material facts have been
pleaded or placed before the court in this regard. P.W.2 admitted that the counting
agents, who were nominated by the Election Petitioner, were well informed about the
counting and filling up of forms and the counting agents could see the votes polled
to each candidate from the table of the control unit. The petitioner, while examining
the Returning Officer as C.W.1, had put the question that it is the supervisor, who
should note down the total number of votes in Part 2 of Form 17(C) and ensure
that it tallies with the total numbers of votes shown in Column 5 of Form 17(C). He
replied that Form 17(C) consists of two parts and Part I is filled by the Presiding
Officer at Polling Station and Part II is filled at the counting centre. It is specifically
deposed by C.W.1 that in the event of any discrepancy in Column 5 of Part I
and Part II of Form 17(C), it would be brought to the knowledge of the Returning
Officer. However, in this case admittedly no such discrepancy was brought to the
knowledge of C.W.1.
27. It is also relevant to advert to the evidence of P.W.2 where he had admitted
that “..... While counting was going on, I was mostly present in the room of the
Returning Officer, however, I went to all the counting halls. I maintained a note
regarding votes displayed in the counting hall for each segment whenever I visited.
In that note, I have written the votes secured by each candidate. I do not know
whether that note has been filed before this court by the Election Petitioner. The
said note was given to the Election Petitioner”. Though it was alleged that in all the
other places, the counting was over by 12:15 p.m., P.W.2 has specifically stated “I
cannot say the exact time, when the counting of each segment was over and when
the Assistant Returning Officer handed over the records to the Returning Officer. .....
There was no display in the room of Returning Officer regarding the votes polled
by each candidate.” P.W.2 has further deposed that “the Returning Officer, after
receipt of forms from the Assistant Returning Officers, tallied finally the votes polled
by 8:30 p.m. It is incorrect to state that I have submitted my objections only after
the final tally that was done by the Returning Officer. .... I have my objections even
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before the final tally. By 4.30 pm, the Election Petitioner was present with me and
I gave my objections at that time”.
28. Though even in the pleading, it has been stated that the objection for recount
of the votes given by P.W.2 on 16-05-2009 was not considered till the date of the
filing of the election petition, an order dated 16-05-2009 in ROC No.E1/6364/2009,
was passed on the same date, which is marked as Ex.C.1. In fact, a reading of
the said order goes to show that the Returning Officer had specifically asked the
Chief Agent of the Election Petitioner whether there was any prima facie evidence
to substantiate the claim for recount. The answer, which has been recorded is “we
have no part-wise details of votes polled by each candidate, we have no prima
facie evidence as of now. We have round-wise details of votes polled in respect
of only one round of votes polled in Alangudi Assembly Segment. Further, in certain
polling station in Manamadurai Assembly Segment, the control unit did not function”.
Based on the above answer, the petition was rejected by the Returning Officer for
want of evidence to support the claim. It appears to have been communicated to
the individual on the same date. Therefore, the allegation that the results were
declared keeping the petition for recount pending is not correct.
29. Further, Ex.C.2, which was marked through C.W.1 Returning Officer dated
16-05-2009 issued in ROC E1/6823/2009 is the communication seeking permission
of the Chief Electoral Officer, Election Commission of India, to declare the results
of the Sivaganga Parliamentary Constituency in favour of the first respondent.
Accordingly, on the same date, the Principal Secretary had granted permission to
the Returning Officer to declare the results.
30. The petitioner had alleged that the votes of the election petitioner were
transposed to the first respondent in Alangudi segment, but there was no evidence of
such transposition. Besides, there are no pleadings or evidence as to the number of
votes allegedly transposed. As held supra, excepting the evidence of P.W.3, which
was eschewed, no other person was examined by the petitioner, though there were
14 counting agents for the petitioner. The forms filled at the end of each round, the
working sheets given by P.W.2 to the counting agents were not produced before this
Court. The petitioner also had not chosen to examine any of the counting agents
of any other independent candidate. It is also pertinent to point out that there is no
pleading in the petition that Rule 63 of Conduct of Election Rules was violated. On
the contrary, R.W.1, the Returning Officer, had adduced clear and cogent evidence
though had been examined after 10 years.
31. A reading of the documents marked as Exs.C.1 to C.6 would go to show
that every procedure was followed as per the Rules. The only allegation of the
petitioner was that the results were not displayed in the notice board and that there
was no Public Announcement System. Though it is stated in the Election Petition
that the petitioner obtained a compact disc from the Election Officer, which contains
the record of the votes polled in each round and in each segment for the candidates
in the fray, the said CD was not produced before this Court.
32. The learned Senior Counsel for the first respondent would, therefore,
contend that having mentioned about the CD being available, but non-production of
the same would lead to the inference that the petitioner has not come to Court with
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clean hands. In this regard, it is relevant to refer to the judgment of the Hon’ble
Supreme Court in Vadivelu V. Sundaram, (2000) 8 SCC 355, wherein, it has been
held as follows:
“16. The result of the analysis of the above cases would show that this
Court has consistently taken the view that re-count of votes could be ordered very
rarely and on specific allegation in the pleadings in the election petition that illegality
or irregularity was committed while counting. The petitioner who seeks re-count
should allege and prove that there was improper acceptance of invalid votes or
improper rejection of valid votes. If only the court is satisfied about the truthfulness
of the above allegation, it can order re-count of votes. Secrecy of ballot has always
been considered sacrosanct in a democratic process of election and it cannot be
disturbed lightly by bare allegations of illegality or irregularity in counting. But if it
is proved that purity of elections has been tarnished and it has materially affected
the result of the election whereby the defeated candidate is seriously prejudiced,
the court can resort to re-count of votes under such circumstances to do justice
between the parties.
18. From the above pleadings, it is evident that the appellant has not set
forth material facts or particulars required for re-count of votes. To justify his contention
that there was irregularity or illegality in the counting, except making some general
and bald allegations, no other details are given. Though an allegation is made that
the electoral roll contained the names of dead persons, that the 1st respondent
took advantage of the same, and that some persons had impersonated and cast
votes in his favour, no details are given as to who committed such irregularity.
The appellant has also not mentioned as to how many such votes had been cast in
favour of the 1st respondent. So also, the appellant has not alleged the nature of the
illegality or irregularity said to have been committed by the Counting Officers. How
and in what manner there was improper acceptance of invalid votes and improper
rejection of valid votes also is not explained by the appellant. In short, the election
petition is bereft of all details and the appellant, while examined as PW 1, could
not supplement anything by way of evidence.”
33. The above dictum enunciated by the Hon-ble Supreme Court is qua the recount
of votes. The Election Petitioner has challenged the election of the first respondent
in the 15th Lok Sabha during 2009-2014. Whether any effective relief in practical
terms can be granted to the petitioner on the ground of irregularities in the counting
of votes and declaration of results. The answer lies with the following judgment in
S. Baldev Singh v. Teja Singh Swatantar, 1975 (4) SCC 406 in the following manner:
“17. The largest democracy in the world, India, naturally has the most
numerous electorate for a territorial constituency. Several thousands to a few lakhs
of ballots for a constituency are polled and have to be inspected and counted in
a rapid process; computers and like electronic devices which achieve in a twinkle
what manual eyes and hands take long hours to perform are denied to us due to
under-development and indigence. But we have human resources in abundance,
to sort out, bundle up, count, check, scrutinize and so on. Our poll finale relies on
human power, and judging by the millions of votes which have passed through the
assembly-line processes of mixing, bundling, scrutinizing, counting and rebundling
— what with mammoth numbers and continuous work — the errors are microscopic.
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This tribute to Indian ability goes to the lesser level staff — the clerks and teachers,
say — who bear the mechanical brunt of the Himalayan labours. When colossal heaps
of votes are processed, the tellers may make chance mistakes. Even computers
are not totally error-proof and, to err is human, physically fatigued and brain-fagged
as they may be occasionally. Scrutiny by vigilant officials and test-checks may be
good but jaded spirits cause slips. Complacent assumption of perfection, when the
operation is gigantic, is a frailty of obdurate minds. That is why realism has induced
Rule 63 and issuance of instructions to Returning Officers, rooted in practical wisdom.
Given lively realism and imaginative understanding in the Returning Officers, many
honestly sceptical and legitimately suspicious candidates who have lost the election
may be stilled in their doubt by a re-count, and the winner, after all, has no vested
interest in error and cannot reasonably object. Such is the interpretative perspective
of Rule 63 which has wrongly been lost sight of by PW 5, the Returning Officer, in
the present case.
18. We frown upon frivolous and unreasonable refusals of re-count by
Returning Officers who forget the mandate of Rule 63 that allowance of re-count
is not the exception and refusal is restricted to cases where the demand itself is
“frivolous” or “unreasonable”. These are strong words. The circumstances of each
case decide. Where the margin of difference is minimal, the claim for a fresh count
cannot be summarily brushed aside as futile or trumpery. If, as in this case, for the
Sherpur segment, a uniform view, founded in legal error, has led to wrong rejection
of votes, rectification by a re-count on the spot, when a demand was made, would
have been reasonable. If formal defects had been misconstrued at some table as
substantial infirmities, or vice versa, resulting in wrongful reception or rejection, the
sooner it was set right the better, especially when a plea for a second inspection
had been made on the spot. Many practical circumstances or legal misconceptions
might honestly affect the legal or arithmetical accuracy of the result and prestige
or fatigue should not inhibit a fresh, maybe partial, check. Of course, baseless
or concocted claims for re-count or fabricated grounds for inspection or specious
complaints of mistakes in counting when the gap is huge are obvious cases of
frivolous and unreasonable demands for re-count. Mala fide aspersions on counting
staff or false and untenable objections regarding validity of votes also fall under the
same category. We mean to be illustrative, not exhaustive, but underline the need,
in appropriate cases, to be reasonably liberal in re-check and re-count by Returning
Officers. After all, fairness at the polls must not only be manifest but misgivings about
the process must be erased at the earliest. Indeed, the Instructions to Officers are
fairly clear and lay down sound guidelines.
19. Judicial power to direct inspection and re-count is undoubted but will
be exercised sparingly. In a recent decision Chanda Singh v. Choudhary Shiv Ram
Verma, (1975) 4 SCC 393, this Court observed:
“A certain amount of stability in the electoral process is essential. If
the counting of the ballots is interfered with by too frequent and flippant re-counts
by courts a new threat to the certainty of the poll system is introduced through the
judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes
exposed to deleterious prying if re-count of votes is made easy. The general reaction,
if there is judicial relaxation on this issue, may well be a fresh pressure on luckless
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candidates, particularly when the winning margin is only a few hundred votes as
here, to ask for a re-count Micawberishly looking for numerical good fortune or
windfall of chance discovery of illegal rejection or reception of ballots. This may
tend to a dangerous disorientation which invades the democratic order by injecting
widespread scope for reopening of declared returns, unless the Court restricts
recourse to re-count to cases of genuine apprehension of miscount or illegality or
other compulsions of justice necessitating such a drastic step”.
20. This implies no break from the liberal stance we have indicated
for Returning Officers. Election petitions come to court after a month and a half
and ripen for trial months later and then the appeal, statutorily vested, inevitably
follows. In this Operation Litigation, which is necessarily protracted, liberal
re-count or lay re-inspection of votes may create belated uncertainties, false hopes
and a hovering sense of suspense, long after elections are over, governments formed
and Legislatures begin to function. Moreover, while a re-count, within the counting
station, with the entire machinery familiar with the process still available at hand
and operational, is one thing, a re-inspection and re-count, which is an elaborate
undertaking with mechanics and machinery of a specialised nature and which cannot
be judicially brought into existence without an amount of time, toil and expense, is a
different thing. This Court has laid down clear principles on the subject, meeting the
ends of justice, but, without opening the floodgates of re-counts on flimsy grounds.
Less election litigation is a sign of the people-s adult franchise maturity and adventurist
election petitions are an infantile disease to be suppressed. Our view of Rule 63,
the relevant wholesome instructions by the Commission and the rulings of this Court,
harmonise with the overall considerations of law and democracy.”
34. The above decision makes it amply clear that unless pleadings contain
necessary foundation for raising an appropriate issue, no amount of evidence will be
sufficient. In the instant case, there is neither pleading nor evidence to substantiate
the allegation of irregularities in the counting of votes. The strenuous efforts of the
learned counsel for the Election Petitioner are not helpful to sustain the allegations
made in the petition. In the absence of both pleadings and proof, mere smallness of
margin of votes by which election is decided is irrelevant. It is also not made clear
as to how many votes are liable to be rejected as having been transferred when the
pleadings are insufficient the alleged irregularities in counting cannot be gone into.
35. As stated supra, the pleadings do not indicate the errors made either with
reference to the number of ballot papers, table or round, in which, mistake occurred.
Excepting the vague statements, the Election Petitioner has not given any testimony
through witness.
36. Hence, the Election Petition is dismissed. In view of the judgment passed
hereinabove, no separate order is necessary in the connected miscellaneous
application and accordingly, the same is closed. The parties shall bear their own costs.
35
Tamil nadu government gazette extraordinary
WITNESS THE HON’BLE MR.JUSTICE SANJIB BANERJEE, CHIEF JUSTICE,
HIGH COURT AT MADRAS AFORESAID, THIS THE 16 TH DAY OF FEBRUARY 2021.
SD/-
ASSISTANT REGISTRAR
Original Side – II
//CERTIFIED TO BE TRUE COPY//
DATED THIS THE 3RD DAY OF MARCH 2021
SD/-
COURT OFFICER (O.S)
From 25th Day of September 2008 the Registry is issuing certified copies of the
Orders/Judgements/Decrees in this format.
36
Tamil nadu government gazette extraordinary
pk-25/02/2021
ELP.NO.5 OF 2009
and
OA.NO.18 of 2013
ORDER
DATED: 16/02/2021
THE HON’BLE MRS JUSTICE
PUSHPA SATHYANARAYANA
FOR APPROVAL: 01/03/2021
APPROVED ON: 01/03/2021
1.
The Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi – 110 001.
2.
The Returning Officer,
Sivagangai Parliamentary
Constituency, Sivaganga.
3.
The Assistant Registrar,
Original Side,
Madras High Court,
Chennai – 600 104.
(By Order)
Malay Mallick,
Secretary,
Election Commission of India.
Secretariat,
SATYABRATA SAHOO,
Chennai-600 009,
Chief Electoral Officer and
24th April, 2021.
Principal Secretary to Government.
Public (Elections) Department.
printed and published by the CommissionEr of Stationery and
printing, chennai on behalf of the Government of Tamil Nadu