NOTIFICATIONS BY THE ELECTION COMMISSION OF INDIA - Judgement of the High Court of Madras in Election Petition No. 12 of 2021

No. 384] CHENNAI, FRIDAY, JULY 8, 2022

Aani 24, Subakiruthu, Thiruvalluvar Aandu–2053

Part V—Section 4

Notifications by the Election Commission of India

NOTIFICATIONS BY THE ELECTION COMMISSION OF INDIA

Judgement of the High Court of Madras in Election Petition No. 12 of 2021

No. SRO G-32/2022.

The following Notifi cation of the Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi-110 001, dated 15th June, 2022 [25 Jyatisha, 1945 (Saka)] is published:-

No. 82/TN-LA/ (EP 12 of 2021)/2022:- 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 28.04.2022 in Election Petition No. 12 of 2021.

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DTP—V-4 Ex.(384)—1 2 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION)

THURSDAY, THE 28TH DAY OF APRIL 2022

THE HON'BLE MR. JUSTICE V. BHARATHIDASAN

Election Petition No. 12 of 2021

&

O.A. Nos. 40 & 167 of 2022

ELP No. 12 of 2021 & O.A. No. 167 of 2022:-

R. Premalatha, W/o. Ravaneswaran, No. 18/42, New Bungalow Street, Chintadripet, Chennai - 600 002. ... Petitioner/Applicant

Vs.

1. Election Commission of India, Nirvachan Sadan, No. 1, Ashoka Road, New Delhi-110 001.

2. Chief Electoral Offi cer of Tamil Nadu, Public (Elections) Department, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai-600 009.

3. Returning Offi cer, No. 19 Chepauk - Thiruvallikeni Assembly Constituency, Chennai-600 014.

4. Udhayanithi Stalin. S, No. 25/9, Chitaranjan Road, Cenetoph 2nd Street, Chennai-600 018. ... Respondents/Respondents

ELP No. 12 of 2021:-

The Election Petition praying that this Hon'ble Court be pleased to (i) declare the acceptance of Nomination of the 4th Respondent namely S. Udhayanithi Stalin to the No. 19 - Chepauk - Thiruvallikeni Assembly Constituency is not accordance with law and illegal and the result declared as null and void (ii) declare that the election held in No. 19 - Chepauk - Thiruvallikeni Assembly Constituency is of undue infl uence and not free and fair election.

3

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

OA. No. 167 OF 2022:-

This Original Application praying that this Hon'ble Court be pleased to grant

leave to amend the form - 25 as per rule 94A fi led along with the petition.

OA. No. 40 of 2022:-

Udhayanithi Stalin. S, S/o. M.K. Stalin, No. 25/9, Chitaranjan Road, Cenetoph 2nd Street, Chennai-600 018.

... Applicant/4th Respondent

Vs..

1. R. Premalatha, W/o. Ravaneswaran, No. 18/42, New Bungalow Street, Chintadripet, Chennai-600 002.

..Respondent/Petitioner

2. Election Commission of India, Nirvachan Sadan, No. 1, Ashoka Road, New Delhi-110 001.

3. Chief Electoral Offi cer of Tamil Nadu, Public (Elections) Department, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai-600 009.

4. Returning Offi cer, No. 19 - Chepauk Thiruvallikeni Assembly Constituency, Chennai-600 014.

...Respondents/Respondents

This Original Application praying that this Hon'ble Court be pleased to reject

EL. OP. No. 12 of 2021.

The above Election Petition and Original Applications having been heard on 07/04/2022 in the presence of Mr. K. Sakthivel, Advocate for M/s. P. Gajendra Babu and V.S. Narayana Rao, Advocates for the Election Petitioner/Applicant in O.A. No.167 of 2022 and for the 1st Respondent in O.A. No.40 of 2022 and of Mr. N. R. Elango, Senior counsel for M/s. A.S. Aswin Prasanna and S. Agiliesh Kumar, advocates for the applicant in O.A. No. 40 of 2022 and for the 4th Respondent in ELP.No.12 of 2021 & O.A. No. 167 of 2022; and upon reading the Petition, Affi davit, Judges Summon and Affi davit of R. Premalatha fi led in Election Petition and OA.No. 167 of 2022 and counter affi davit fi led in OA. No. 40 of 2022; and Judge's Summon, Affi davit of Udhayanithi Stalin. S fi led in OA. No. 40 of 2022; and this court having stood over for consideration till this day and coming on this day before this court for orders in the presence of the above said advocates and this Court is of a considered view 4 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

that the election petition does not disclose a cause of action and failed to give rise to triable issues and

it is ordered as follows:-

1. That the Election Petition No. 12 of 2021 be and is hereby rejected.

2. That the Original Application No. 167 of 2022 in ELP. No.12 of 2021 be and

is hereby closed.

3. That there shall be no order as to costs.

WITNESS, THE HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI, CHIEF JUSTICE, HIGH COURT AT MADRAS, AFORESAID THIS THE 28TH DAY OF APRIL 2022.

Sd./- ASSISTANT REGISTRAR

Original Side-II

//Certifi ed to be true copy//

Dated at Madras this the 9th day of May 2022.

COURT OFFICER (O.S.)

From 25th Day of September 2008 the Registry is issuing certifi ed copies of the Orders/Judgments/Decrees in this format.

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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

PK

05/05/2022

ELP. No. 12 OF 2021

&

OA. Nos. 40 of 2022 & 167 of 2022

DECREE DATED: 28/04/2022

THE HON'BLE MR. JUSTICE

V. BHARATHIDASAN

FOR APPROVAL: 06/05/2022

APPROVED ON : 06/05/2022

Copy to:-

1. Returning Offi cer, No. 19, Chepauk - Thiruvellikeni Assembly Constituency, Chennai-600 014.

2. Chief Electoral Offi cer, Tamil Nadu Public (Elections) Department, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai-600 009.

3. The Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi.

6 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION)

THURSDAY, THE 28TH DAY OF APRIL 2022

THE HON'BLE MR. JUSTICE V.BHARATHIDASAN

Election Petition No. 12 of 2021

&

O.A. Nos. 40 & 167 of 2022

ELP No. 12 of 2021 & OA No. 167 of 2022:-

R. Premalatha, W/o. Ravaneswaran, No. 18/42, New Bungalow Street, Chintadripet, Chennai-600 002. ... Petitioner/Applicant

-VS-

1. Election Commission of India, Nirvachan Sadan, No. 1, Ashoka Road, New Delhi-110 001.

2. Chief Electoral Offi cer of Tamil Nadu, Public (Elections) Department, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai-600 009.

3. Returning Offi cer, No. 19 - Chepauk - Thiruvallikeni Assembly Constituency, Chennai-600 014.

4. Udhayanithi Stalin. S, No.25/9, Chitaranjan Road, Cenetoph 2nd Street, Chennai-600 018. ... Respondents/Respondents

ELP No.12 of 2021:-

The Election Petition praying that this Hon'ble Court be pleased to i) declare the acceptance of Nomination of the 4th Respondent namely S. Udhayanithi Stalin to the No. 19 - Chepauk - Thiruvallikeni Assembly Constituency is not accordance with law and illegal and the result declared as null and void (ii) Declare that the election held in No. 19 - Chepauk - Thiruvallikeni Assembly Constituency is of undue infl uence and not free and fair election.

7

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

OA.No. 167 OF 2022:-

This Original Application praying that this Hon'ble Court be pleased to grant

leave to amend the form - 25 as per rule 94A fi led along with the petition.

OA No. 40 of 2022:-

Udhayanithi Stalin. S, S/o. M.K. Stalin, No.25/9, Chitaranjan Road, Cenetoph 2nd Street, Chennai-600 018.

... Applicant/4th Respondent

Vs.

1. R. Premalatha, W/o. Ravaneswaran, No. 18/42, New Bungalow Street, Chintadripet, Chennai-600 002.

..Respondent/Petitioner

2. Election Commission of India, Nirvachan Sadan, No. 1, Ashoka Road, New Delhi-110 001.

3. Chief Electoral Offi cer of Tamil Nadu, Public (Elections) Department, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai-600 009.

4. Returning Offi cer, No. 19 - Chepauk - Thiruvallikeni Assembly Constituency, Chennai - 600 014.

...Respondents/Respondents

This Original Application praying that this Hon'ble Court be pleased to reject

EL. OP. No. 12 of 2021.

The above Election Petition and Original Applications having been heard on 07/04/2022 in the presence of Mr. K. Sakthivel, Advocate for M/s. P. Gajendra Babu and V.S.Narayana Rao, Advocates for the Election Petitioner/Applicant in O.A.No.167 of 2022 and for the 1st Respondent in O.A.No. 40 of 2022 and of Mr. N. R. Elango, Senior counsel for M/s. A. S. Aswin Prasanna and S.Agiliesh Kumar, advocates for the applicant in O.A.No. 40 of 2022 and for the 4th Respondent in ELP. No. 12 of 2021 & O.A.No. 167 of 2022; and upon reading the Petition, Affi davit, Judges Summon and Affi davit of R. Premalatha fi led in Election Petition and OA.No. 167 of 2022 and counter affi davit fi led in OA.No. 40 of 2022; and Judge's Summon, Affi davit of Udhayanithi Stalin. S fi led in OA.No. 40 of 2022; and this court having stood over for consideration till this day and coming on this day before this court for orders in the presence of the above said advocates and 8 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

the court made the following order:-

This application, has been fi led under Order VII Rule 11 of the Code of Civil Procedure, 1908, (hereinafter referred to as 'CPC'), to reject the Election Petition in E.L.P. No.12 of 2021. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Election Petition.

2. This application has been fi led by the fourth respondent / returned

candidate, from Chepauk - Thiruvallekeni Legislative Assembly constituency.

3. The election petitioner claiming herself as an eligible elector from Chepauk - Thiruvallekeni Legislative Assembly constituency, has fi led this election petition, (i) to declare the acceptance of nomination of the fourth respondent, namely the petitioner in O.A.No. 40 of 2022, to the Chepauk - Thiruvallekeni Legislative Assembly constituency, is not in accordance with law, illegal and consequently the result declared is null and void and (ii) to declare the election held in Chepauk - Thiruvallekeni constituency is of undue infl uence and not free and fair election.

4. The brief facts leading to fi ling of the election petition is that, the petitioner is a practicing Advocate and also a voter in the above said Assembly Constituency. In the General Election to the Tamil Nadu Legislative Assembly held in April, 2021, the fourth respondent contested the election from Chepauk - Thiruvallekeni Legislative Assembly constituency as the offi cial candidate of the Dravida Munnetra Kazhagam (in short 'DMK') and he was declared elected.

5. According to the election petitioner, the fourth respondent while fi ling his nomination, fi led Form 26, under Rule 4-A of the Conduct of Election Rules, 1961 (hereinafter referred to as the 'Rules'). In the above said affi davit, in Column No. 5(ii), which requires information regarding criminal case details, the fourth respondent has stated that he fi led the details in Annexure-I. In the said Annexure-I, he has mentioned 22 criminal cases pending against him. However he has stated 'Nil' in Columns 3 and 4 in Para 5(ii) in Form 26. In Column (d), which requires particulars regarding brief description of the offence, the fourth respondent simply stated that the cases were fi led for violation of law during political agitations for public.

6. According to the election petitioner, all the 22 cases, were registered against the fourth respondent for various offences, however he suppressed the same and simply stated that the cases were fi led for violation of law during political agitation for public, which is a false statement, misleads the voters and deprives the voters right to information.

7. Further according to the election petitioner, sub-clause (i) of Section 33(A)(1) of the Representation of People Act, 1951 (hereinafter referred to as the 'Act') requires effectuate information in cases where cognizance were taken should be comprehended within the area of information accessible to the voters and the fourth respondent deliberately fi led a false affi davit to infl uence the voters.

8. That apart, the fourth respondent has furnished incorrect and false information in the affi davit and non-disclosure of material information amounts to violation of the Act and the Rules therein. Since there is false disclosure on the part of the fourth respondent, which amounts to undue infl uence and therefore the 9

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

election has to be declared as null and void as per Section 100(l)(a), 100(l)(b), 100(l)(d)(i) and 100(l)(d)(iv) of the Act.

9. That apart, one Mr. J.V. Mohanakrishnan, who was appointed as the Presiding Offi cer in Zonal Party No.2 was associated with the fourth respondent and his political party and he has also written a book regarding the party to which the fourth respondent belongs. That apart, he was teacher to the spouse of the fourth respondent. This offi cer misused/infl uenced the voters and get polled to their affi liation in collusion with the booth agents appointed by these political parties. He was under control of 10 polling booths at Chintadripet and he infl uenced the offi cials directly or indirectly, threat or other means and get favoured by illegal voting. On the above grounds, the election of the fourth respondent has to be set aside.

10. With the above allegations, the election petitioner has sought to declare the election of the fourth respondent from Chepauk - Thiruvallekeni Legislative Assembly constituency as null and void.

11. The fourth respondent has fi led the present application, under Order VII Rule 11 of CPC, to reject the election petition on the ground that though the main allegation against the fourth respondent is that he has not disclosed the information properly in Form 26, however it is admitted by the election petitioner herself that the fourth respondent has disclosed all the criminal cases pending against him and thus there is scrupulous compliance of Form 26.

12. Further, mere mentioning of 'No' in the tabular column in Form 26, will in no way amounts to suppression of cases pending against the fourth respondent and the voters have complete knowledge about the cases pending against him and thus there is complete compliance of Section 33A of the Act.

13. It is further stated that in Form 26, Note 4, gives liberty to the candidates to enclose separate sheets, which was preciously done in this case. As the Tabular Column requires details of pending cases either within the Tabular Column or on separate sheets as annexure to the form. As the fourth respondent has fi led separate sheets disclosing all the criminal cases pending against him he has strictly complied Section 33A of the Act.

14. So far as the allegation regarding the misuse of offi cial power by one Mr. J.V. Mohanakrishnan, the allegations contained in para 22 of the election petition is bereft of any material particulars constituting a complete cause of action and absolutely there is no averment as to how the same has affected the election. The election petitioner has stated that the presiding offi cer acted in collusion but she did not specify what is the collusion and what are the things done by him. The averments contained in para 22 is completely absent of any material particulars and facts. Even the affi davit fi led by the election petitioner in Form 25 has not disclosed the same and it is not in compliance of Form 25 and there is no averment regarding the details of the corrupt practice which is a mandatory requirement, and it is not in tune with Section 85 of the Act and in terms of Order VI Rule 15 of CPC.

15. That apart, it is also stated that two more election petitions were fi led with the same averments and allegations and the said election petitions are verbatim repetition of the same set of facts. Thus, the election petitioner has not set out any 10 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

case of non-compliance with the provisions of the Act and Rules, as the election petitioner does not substantially set out any material facts on which the election petitioner relies to challenge the election of the fourth respondent, and therefore the election petition is liable to be rejected. That apart, each and every paragraph of the election petition is bereft of any material particulars and facts, it does not disclose any triable issue and no cause of action has been made out. In the said circumstances, according to the fourth respondent, the election petition ought to be rejected at the threshold under Order VII Rule 11 of CPC.

16. Mr. N.R. Elango, learned senior counsel appearing for the fourth respondent/returned candidate, would submit that the main allegation against the fourth respondent is that, he has suppressed the vital information regarding the criminal cases pending against him. Under Section 33-A(l)(i) & (ii) of the Act. Section 33-A(l)(i) & (ii) of the Act mandates the candidates to provide information as to whether the candidate is an accused of any offence punishable with imprisonment for two year or more in a pending case in which a charge has been framed by the Court of competent jurisdiction and whether he has been convicted of an offence and sentenced to imprisonment for one year or more. Section 33-A only requires the candidates to furnish information regarding cases where charges have been framed or he has been convicted for any offence and sentenced to imprisonment for one year or more and does not contemplate any information regarding criminal case pending investigation.

17. Admittedly, in the instant case, 22 criminal cases are registered against the fourth respondent and investigation is pending, so far no fi nal report has been fi led, no cognizance have been taken, and charges have not been framed by a Court of competent jurisdiction, and he has not been convicted in any criminal case. In such circumstances, there is no necessity for the fourth respondent to disclose the criminal cases in which only investigation is pending. However, the fourth respondent came forward to disclose all the 22 criminal cases pending against him and there is no allegation that he has suppressed any of the criminal cases.

18. The other allegation against the fourth respondent is that the fourth respondent failed to provide the details of pending criminal case against him in the column provided in Form 26, instead he has fi led a separate annexure giving details in column 2 and 3. The learned senior counsel submitted that the appended Note, to Form 26, provides that the candidate can fi le a separate sheet in the form of annexure disclosing criminal cases pending against them. Admittedly, the petitioner fi led separate sheets mentioning all the particulars regarding the pending criminal cases and he has also given reason that the cases were fi led for violation of law during political agitation for public. Even though, there is no necessity on the part of the fourth respondent to disclose the same, he has given all the details.

19. So far as the other allegation contained in para 22 of the election petition, the averments are totally bereft of any material particulars and the averments are too vague. Hence, according to the learned senior counsel, no case is made out to show that the election has been materially affected. A vague averments that non- disclosure of information in Form 26 materially affected the election is not suffi cient without any supporting materials therein. According to the learned senior counsel, as the election petitioner has not disclosed any cause of action and raised any triable 11

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

issue, the election petition has to be rejected at the threshold. The learned senior counsel also relied upon number of judgments, which will be referred to in the later part of this order.

20. Per contra, Mr.K.Sakthivel, the learned counsel appearing for the election petitioner, would contend that, Section 33-A(l)(i) requires a candidate to disclose all the criminal cases pending against him as specifi ed in Form 26, which contains tabular columns and the candidate is required to fi ll up all the columns, but the fourth respondent has only stated 'Nil' in the columns, by which, he has given misinformation, to mislead the voters with intention to defraud the voters. Therefore, on that ground itself, the election of the fourth respondent has to be declared null and void and the election petition cannot be rejected under Order VII Rule 11 of CPC.

21. Further according to the learned counsel, the averments contained in the election petition disclose a cause of action and it cannot be rejected at the threshold. The learned counsel also relied upon number of judgments, which will be referred to in the later part of this order.

22. I have considered the rival submissions and also perused the materials

available on record carefully.

23. The election petition has been fi led alleging noncompliance of the provisions of Section 33-A(l) of the Act, which is in violation of Section 100(l)(a), 100(l)(b), 100(l)(d)(i) and (iv) of the Act. It is stated that while fi ling the nomination an affi davit has been fi led under Form 26, in which, the fourth respondent did not disclose the criminal cases pending against him. That apart, the fourth respondent has indulged in corrupt practice by engaging one of the Presiding Offi cers of the election, who has infl uenced the voters and made them to vote in favour of the fourth respondent.

24. Before considering the issues, it would be useful to refer to the relevant provisions of CPC, the Representation of People Act, 1951 and Conduct of Election Rules,

25. Order VII Rule 11 CPC, deals with rejection of plaint, which is extracted

hereunder:

"Order VII Rule 11 Rejection of plaint.—

The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff', on

being required by the Court to correct the valuation within a time to be

fi xed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is

returned upon paper insuffi ciently stamped, and the plaintiff, on being

required by the Court to supply the requisite stamp-paper within a time

to be fi xed by the Court, fails to do so;

12 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

(d) where the suit appears from the statement in the plaint to be

barred by any law;

(e) where it is not fi led in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9:

Provided that the time fi xed by the Court for the correction of the valuation or

supplying of the requisite stamp-paper shall not be extended unless the Court, for

reasons to be recorded, is satisfi ed, that the plaintiff was prevented by any cause of

an exceptional nature from correcting the valuation or supplying the requisite stamp-

-paper, as the case may be, within the time fi xed by the Court and that refusal to

extend such time would cause grave injustice to the plaintiff. "

26. Section 33 of the Act, speaks about presentation of nomination paper and the requirements for a valid nomination. Section 33-A of the Act, speaks about right to information, and Section 100 of the Act, speaks about the grounds for declaring an election as void. Rule 4-A of the Rules speaks about the form of affi davit to be fi led at the time of delivering nomination paper. Form 26 of the Rules speaks about the form of affi davit to be fi led by the candidate along with the nomination paper. Sections 33, 33-A and 100 of the Act and Rule 4-A and Form 26 of the Rules are extracted below:

"Section 33. Presentation of nomination paper and requirements

for a valid nomination.—

(1) On or before the date appointed under clause

(a) of section 30 each candidate shall, either in person or by his

proposer, between the hours of eleven o'clock in the forenoon and three

o'clock in the afternoon deliver to the returning offi cer at the place specifi ed

in this behalf in the notice issued under section 31a nomination paper

completed in the prescribed form and signed by the candidate and by an

elector of the constituency as proposer:

Provided that a candidate not set up by a recognised political party,

shall not be deemed to be duly nominated for election form a constituency

unless the nomination paper is subscribed by ten proposers being electors

of the constituency:

Provided further that no nomination paper shall be delivered to the

returning offi cer on a day which is a public holiday:

Provided also that in the case of a local authorities' constituency,

graduates' constituency or teachers' constituency, the reference to "an

elector of the constituency as proposer" shall be construed as a reference

to ten per cent, of the electors of the constituency or ten such electors,

whichever is less, as proposers.

(1-A) Notwithstanding anything contained in sub-section (1), for election

to the Legislative Assembly of Sikkim (deemed to be the Legislative

Assembly of that State duly constituted under the Constitution), the

13

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

nomination paper to be delivered to the returning offi cer shall be in such

form and manner as may be prescribed:

Provided that the said nomination paper shall be subscribed by the

candidate as assenting to the nomination, and—

(a) in the case of a seat reserved for Sikkimese of Bhutia-Lepcha

origin, also by at least twenty electors of the constituency as proposers

and twenty electors of the constituency as seconders;

(b) in the case of a seat reserved for Sanghas, also by at least twenty

electors of the constituency as proposers and at least twenty electors of

the constituency as seconders;

(c) in the case of a seat reserved for Sikkimese of Nepali origin,

by an elector of the constituency as proposer:

Provided further that no nomination paper shall be delivered to the

returning offi cer on a day which is a public holiday.

(2) In a constituency where any seat is reserved, a candidate shall

not be deemed to be qualifi ed to be chosen to fi ll that seat unless his

nomination paper contains a declaration by him specifying the particular

caste or tribe of which he is a member and the area in relation to

which that caste or tribe is a Scheduled Caste or, as the case may be,

a Scheduled Tribe of the State.

(3) Where the candidate is a person who, having held any offi ce

referred to in Section 9, has been dismissed and a period of fi ve years

has not elapsed since the dismissal, such person shall not be deemed

to be duly nominated as a candidate unless his nomination paper is

accompanied by a certifi cate issued in the prescribed manner by the

Election Commission to the effect that he has not been dismissed for

corruption or disloyalty to the State.

(4) On the presentation of a nomination paper, the returning offi cer

shall satisfy himself that the names and electoral roll numbers of the

candidate and his proposer as entered in the nomination paper are the

same as those entered in the electoral rolls :

Provided that no misnomer or inaccurate description or clerical,

technical or printing error in regard to the name of the candidate or his

proposer or any other person, or in regard to any place, mentioned in

the electoral roll or the nomination paper and no clerical, technical or

printing error in regard to the electoral roll numbers of any such person

in the electoral roll or the nomination paper, shall affect the full operation

of the electoral roll or the nomination paper with respect to such person

or place in any case where the description in regard to the name of the

person or place is such as to be commonly understood; and the returning

offi cer shall permit any such misnomer or inaccurate description or clerical,

technical or printing error to be corrected and where necessary, direct that

14 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

any such misnomer, inaccurate description, clerical, technical or printing

error in the electoral roll or in the nomination paper shall be overlooked.

(5) Where the candidate is an elector of a different constituency,

a copy of the electoral roll of that constituency or of the relevant part

thereof or a certifi ed copy of the relevant entries in such roll shall, unless

it has been fi led along with the nomination paper, be produced before the

returning offi cer at the time of scrutiny.

(6) Nothing in this section shall, prevent any candidate from being

nominated by more than one nomination paper:

Provided that not more than four nomination papers shall be presented

by or on behalf of any candidate or accepted by the returning offi cer for

election in the same constituency.

(7) Notwithstanding anything contained in sub-section (6) or in any

other provisions of this Act, a person shall not be nominated as a candidate

for election,—

(a) in the case of a general election to the House of the People

(whether or not held simultaneously from all Parliamentary constituencies),

from more than two Parliamentary constituencies;

(b) in the case of a general election to the Legislative Assembly of a

State (whether or not held simultaneously from all Assembly constituencies),

from more than two Assembly constituencies in that State;

(c) in the case of a biennial election to the Legislative Council of a

State having such Council, from more than two Council constituencies in

the State;

(d) in the case of a biennial election to the Council of States for fi lling

two or more seats allotted to a State, for fi lling more than two such seats;

(e) in the case of bye-elections to the House of the People from two

or more Parliamentary constituencies which are held simultaneously, from

more than two such Parliamentary constituencies;

(f) in the case of bye-elections to the Legislative Assembly of a State

from two or more Assembly constituencies which are held simultaneously,

from more than two such Assembly constituencies;

(g) in the case of bye-elections to the Council of States for fi lling two

or more seats allotted to a State, which are held simultaneously, for fi lling

more than two suchseats;

(h) in the case of bye-elections to the Legislative Council of a State

having such Council from two or more Council constituencies which are

held simultaneously, from more than two such Council constituencies.

Explanation.— For the purposes of this sub-section, two or more

bye-elections shall be deemed to be held simultaneously where the

15

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

notifi cation calling such bye-elections are issued by the Election Commission

under section 147, section 149, section 150 or, as the case may be,

section 151 on the same date.

***

Section 33-A. Right to information.—

(1) A candidate shall, apart from any information which he is required to

furnish, under this Act or the rules made thereunder, in his nomination paper delivered

under sub-section (1) or section 33, also furnish the information as to whether—

(i) he is accused of any offence punishable with imprisonment

for two years or more in a pending case in which a charge has been framed

by the court of competent jurisdiction;

(ii) he has been convicted of an offence [other than any offence

referred to in sub-section (1) or sub-section (2), or covered in sub-section (3),

of section 8] and sentenced to imprisonment for one year or more.

(2) The candidate of his proposer, as the case may be, shall, at the time

of delivering to the returning offi cer the nomination paper under sub-section (1) of

section 33, also deliver to him an affi davit sworn by the candidate in a prescribed

form very fi ne the information specifi ed in subsection (1).

(3) The returning offi cer shall, as soon as may be after the furnishing of

information to him under sub-section (1), display the aforesaid information by affi xing

a copy of the affi davit, delivered under sub-section (2), at a conspicuous place at

his offi ce for the information of the electors relating to a constituency for which the

nomination paper is delivered.

****

Section 100. Grounds for declaring election to be void.—

(1) Subject to the provisions of sub-section (2) if the High Court

is of opinion—

(a) that on the date of his election a returned candidate was

not qualifi ed, or was disqualifi ed, to be chosen to fi ll the seat

under the Constitution or this Act or the Government of Union

Territories Act, 1963 (20 of 1963); or

(b) that any corrupt practice has been committed by a returned

candidate or his election agent or by any other person -with the

consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns

a returned candidate, has been materially affected—

(i) by the improper acceptance of any nomination, or

16 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

(ii) by any corrupt practice committed in the interests of

the returned candidate by an agent other than his election

agent, or

(iii) by the improper reception, refusal or rejection of any

vote or the reception of any vote-which is void, or

(iv) by any non—compliance-with the provisions of the

Constitution or of this Act or of any rules or orders made

under this Act, the High Court shall declare the election of

the returned candidate to be void.

(2) If in the opinion of the High Court, a returned candidate has

been guilty by an agent, other than his election agent, of any corrupt

practice but the High Court is satisfi ed—

(a) that no such corrupt practice was committed at the election

by the candidate or his election agent, and every such corrupt practice

was committed contrary to the orders, and without the consent, of the

candidate or his election agent;

(b) Omitted

(c) that the candidate and his election agent took all reasonable

means for preventing the commission of corrupt practices at the election;

and

(d) that in all other respects the election was free from any corrupt

practice on the part of the candidate or any of his agents then the

High Court may decide that the election of the returned candidate is

not void. "

* * *

Rule 4-A. Form of affidavit to be filed at the time of delivering

nomination paper.—

The candidate or his proposer, as the case may be, shall, at the

time of delivering to the returning offi cer the nomination paper under

sub-section (1) of section 33 of the Act, also deliver to him an affi davit

sworn by the candidate before a Magistrate of the fi rst class or a Notary

in Form 26."

* * *

Form 26. Affidavit to be filed by the candidate along with

Nomination Paper.

17

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

"F(cid:3479)(cid:3482)(cid:3477) 26

[See Rule 4-A]

Please affi x your recent passport

size photograph here

Affi davit to be fi led by the candidate along with nomination paper before the

returning offi cer for election to...............................(name of the House) from ............

……………………… constituency (Name of the constituency)

PART A

I ................................................................................................... **son/daughter/

wife of ....................... Aged. .......................................................... years, resident of .

....................................................................................................... (mention full postal

address), a candidate at the above election, do hereby solemnly affi rm and state

on oath as under—

(1) I am a candidate set up by …………………………. (**name of the

political party)/**am contesting as an Independent candidate.

(**Strike out whichever is not applicable)

(2) My name is enrolled in ................................................

(Name of the constituency and the State), at Serial No……….…

in Part No .........................................

(3) My contact telephone number(s) is/are.............................. and my

E-mail ID (if any) is

***

5. Pending criminal cases.-

(i) I declare that there is no pending criminal cases against me

(Tick this alternative, if there is no criminal case pending against the Candidate and

write NOT APPLICABLE against alternative (ii) below)

OR

(ii) The following criminal cases are pending against me:

(If there are pending criminal cases against the candidate, then tick this

alternative and score off alternative (i) above, and give details of all pending cases

in the Table below)

(6) Cases of conviction.-

(i) I declare that I have not been convicted for any criminal offence.

(Tick this alternative, if the candidate has not been convicted and write

NOT APPLICABLE against alternative (ii) below)

OR

(ii) I have been convicted for the offences mentioned below:

(If the candidate has been convicted, then tick this alternative and score

off alternative (i) above, and give details in the Table given below)

TABLE

(a) Case No.

(b) Name of the Court

(c) Sections of Acts/Codes involved (give No. of

the Section, e.g., Section .... of IPC, etc.

(d) Brief description of offence for which convicted

(e) Dates of orders of conviction

19

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

(f) Punishment imposed

(g) Whether any Appeal has been filed against

conviction order (Mention YES or NO)

(h) If answer to item (g) above is YES, give details

and present status of appeal

(6-A) I have given full and up-to-date information to my political party

about all pending criminal cases against me and about all cases of conviction

as given in paragraphs (5) and (6).

(Candidates to—whom this item is not applicable should clearly

write NOT APPLICABLE IN VIEW OF ENTRIES IN PARAGRAPHS 5(i) and

6(i) above.)

NOTE: 1. Details should be entered clearly and legibly in BOLD letters.

2. Details to be given separately for each case under different

columns against each item.

3. Details should be given in reverse chronological order, i.e.,

the latest case to be mentioned fi rst and backwards in the order of dates for

the other cases.

4. Additional sheet may be added if required,

5. Candidate is responsible for supplying all information in

compliance of the Hon'ble Supreme Court's judgment in W.P.(C)No.536 of

2011.). " (emphasis added)

27. Now the question to be decided is, whether the fourth respondent has violated Section 33-A of the Act and failed to disclose the criminal cases pending against him.

28. The contention of the election petitioner is that the fourth respondent failed to disclose the pending criminal cases in Form 26, and he has given the details in a separate annexure. That apart, in column (d) of Form 26, gives brief description of offence, the fourth respondent has simply answered that, all the cases were fi led for violation of law during political agitation for public, which is not correct and thus the fourth respondent has suppressed the information and thereby violated Section 33-A(l)(i) of the Act.

29. It is an admitted case that, the fourth respondent have 22 criminal cases registered against him and are pending investigation and he has also disclosed all the 22 criminal cases in a separate annexure along with Form 26. It is also an admitted fact that in none of the criminal cases investigation has been completed and no fi nal report has been fi led and no charges have been framed by the Court of competent jurisdiction against the fourth respondent. It is also admitted that he was not convicted for any offence.

20 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

30. It is the contention of the learned senior counsel for the fourth respondent that since the fourth respondent is only expected to disclose particulars regarding the cases in which charges have been framed by the Court of competent jurisdiction, in the instant case, in none of the criminal cases registered against the fourth respondent investigation has not been completed and fi nal report has been fi led and charges are yet to be framed. In these circumstances, he is not expected to disclose the information regarding those criminal cases.

31. The learned senior counsel relied upon a judgment of the Hon'ble Supreme Court in Satish Ukey Vs. Devendra Gangadharrao Fadnavis reported in (2019) 9 SCC 1, to support his contention and in paragraph 24, the Hon'ble Supreme Court has held as follows:

"24. A cumulative reading of Section 33-A of the 1951 Act and Rule

4-A of the 1961 Rules and Form 26 along with the letters dated

24-8-2012, 26-9-2012 and 26-4-2014, in our considered view, make it

amply clear that the information to be furnished under Section 33-A

of the 1951 Act includes not only information mentioned in clauses

(i) and (ii) of Section 33-A(1), but also information, that the candidate

is required to furnish, under the Act or the Rules made thereunder

and such information should be furnished in Form 26, which includes

information concerning cases in which a competent court has taken

cognizance [Entry 5(ii) of Form 26]. This is apart from and in addition

to cases in which charges have been framed for an offence punishable

with imprisonment for two years or more or cases in which conviction

has been recorded and sentence of imprisonment for a period of

one year or more has been imposed [Entries 5(i) and 6 of Form 26

respectively]. "

32. In Krishnamoorthy Vs. Sivakumar reported in (2015) 3 SCC 467,

the Hon'ble Supreme Court has held in paragraphs 82 and 94(4) as follows:

"82. Having stated about the need for vibrant and healthy democracy,

we think it appropriate to refer to the distinction between disqualifi cation

to contest an election and the concept or conception of corrupt practice

inhered in the words ''undue infl uence Section 8 of the 1951 Act stipulates

that conviction under certain offences would disqualify a person for being a

Member either of the House of Parliament or the Legislative Assembly or

Legislative Council of a State. We repeat at the cost of repetition unless

a person is disqualifi ed under law to contest the election, he cannot be

disqualifi ed to contest. But the question is when an election petition is

fi led before an Election Tribunal or the High Court, as the case may be,

questioning the election on the ground of practising corrupt practice by

the elected candidate on the foundation that he has not fully disclosed

the criminal cases pending against him, as required under the Act and

the Rules and the affi davit that has been fi led before the Returning

Offi cer is false and refl ects total suppression, whether such a ground

would be sustainable on the foundation of undue infl uence. We may give

an example at this stage. A candidate fi ling his nomination paper while

giving information swears an affi davit and produces before the Returning

21

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

Offi cer stating that he has been involved in a case under Section 354

IPC and does not say anything else though cognizance has been taken

or charges have been framed for the offences under the Prevention of

Corruption Act, 1988 or offences pertaining to rape, murder, dacoity,

smuggling, land grabbing, local enactments like the Maharashtra Control

of Organized Crime Act, 1999, UP. Control of Goondas Act, 1970,

embezzlement, attempt to murder or any other offence which may come

within the compartment of serious or heinous offences or corruption or

moral turpitude. It is apt to note here that when an FIR is fi led a person

fi ling a nomination paper may not be aware of lodgement of the FIR but

when cognizance is taken or charge is framed, he is defi nitely aware of

the said situation. It is within his special knowledge. If the offences are

not disclosed in entirety, the electorate remain in total darkness about

such information. It can be stated-with certitude that this can defi nitely be

called antecedents for the limited purpose, that is, disclosure of information

to be chosen as a representative to an elected body.

***

94.4. As the candidate has the special knowledge of the pending

cases where cognizance has been taken or charges have been framed

and there is a non-disclosure on his part, it would amount to undue

infl uence and, therefore, the election is to be declared null and void by

the Election Tribunal under Section 100(1)(b) of the 1951 Act."

33. In the instant case, the fourth respondent has disclosed all the criminal cases pending against him. Now the contention of the election petitioner is that even though the fourth respondent is having 22 criminal case pending against him, in Form 26 he has not mentioned the above criminal cases in the Form 26 itself, instead he has fi led a separate annexure. According to the learned counsel for the election petitioner, spaces are available in the fi rst three columns in Form 26, and the fourth respondent could have mentioned the fi rst three criminal cases in the space available in Form 26 itself and the remaining criminal cases he could have fi led in a separate annexure. The said contention of the learned counsel cannot be countenanced for the reason that, a cursory perusal of Form 26, the candidate is expected to mention the pending criminal case, FIR No. with name and address of police station concerned. Column (a) contains three columns for enabling the candidate to mention the pending cases. However, the Note (4) appended to Form 26, it is clearly mentioned that additional sheet may be added if required. In the instant case, the fourth respondent is having 22 criminal cases and space provided in Form 26 is not suffi cient to mention all the criminal cases, hence he fi lled it in a separate annexure and there is no illegality in it. When a candidate disclose all the pending cases in a separate annexure, there is no necessity to fi ll up the columns provided in Form 26. Hence, the contention of the learned election petitioner in this regard cannot be countenanced.

34. The next contention is that Column (d) of Form 26 requires brief description of the offence. The fourth respondent mentioned that the cases were fi led for violation of law during political agitation for public. A perusal of the criminal cases pending against the fourth respondent, it could be seen that all the cases have been 22 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

registered against the fourth respondent while he was participating in public agitations against the Government. In such circumstances, he briefl y mentioned that the cases have been fi led for violation of law during political agitation for public and there is no illegality or irregularity in it. Hence, considering the above circumstances, this Court is of the view that the fourth respondent has not suppressed any information violating the provisions of Section 33-A of the Act.

35. The next allegation with regard to corrupt practice is that, one of the election offi cial is closely related to the fourth respondent and also wrote a book on the party in which the fourth respondent belongs and he has infl uenced the voters to vote for the fourth respondent and thereby involved in corrupt practice. The relevant paragraph No.22 in the election petition reads as follows:

"22. The petitioner states the one Mr. J.V. Mohanakrishnan was

appointed Presiding/section offi cer, in Zonal Party No. 2. His unique

no. 13074. Independent Candidate one Mr. C. Kannan raised objection,

that the said offi cer was associated with the 4th respondent and his

political party. He has written book/published on Dravida Munnetra

Khazagam Youth wing. He was teacher for Krithika Udayanithi, spouse

of 4th respondent. These offi cer's misuse/infl uence votes and get polled

to their affi liation in collusion with agents appointed by these political

party. As for the information he was under control of 10 polling booths

at Chintadripet. The all mishaps occur mostly during in the afternoon

secession of polling, where booth agents and the offi cials collide. The

major parties that rule or ruled infl uence the offi cials directly or indirectly,

threat or other means and get forward by illegal voting. People once

polled are not allowed to enter the booth again to verify or know the

facts. The other parties who's candidates contest are were not able to

coupe up before these money and muscle powered parties, election

commission becomes mute spectators."

36. It is settled law that Section 83(1 )(a) of the Act mandates that the election petition shall contain concise statement of material facts on which the election petitioner relies. The material facts would include positive statement of fact, which may be proved during trial by the party to establish existence of a cause of action. Failure to plead material facts is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for fi ling the election petition. But the averments regarding corrupt practice absolutely there is no specifi c allegation and the statements are very vague and based on those pleadings no trial can be held.

37. The learned counsel appearing for the election petitioner would submit that at the time of considering the application fi led under Order VII Rule 11 of CPC, the averments in the election petition alone has to be considered and the contention the fourth respondent cannot be considered. To support his contention, the learned counsel relied upon a judgment of the Hon'ble Supreme Court in Roop Lal Sathi Vs. Nachhattar Singh reported in 1982 AIR (SC) 1559. The learned counsel further submitted that the petitioner failed to give complete information in the format provided in the Statute and merely fi ling Annexure amounts to non-disclosure of details. In support of his contention, the learned counsel for the election petitioner relied upon 23

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

judgment of the High Court of Manipur in Shri Yumkham Erabot Singh Vs. Shri Okram Henry Singh Singh in E.L.P.No.2 of 2017 dated 15.04.2021. In paragraph 44 it is held as follows:

"44. On further perusal of the Exbt.P/7 which is the Affi davit dated

13/02/2017 of the Respondent No. 1 this Court found that the Respondent

No. 1 failed to disclose the details of the Criminal Case pending against

him as provided in Column No. 5 (i) particularly Special Trial Case No.

FIR No. Short description of the offence (s) for -which charged etc. and

as such, it is not case of fi lling in wrong Column but also it is the clear

case of non-disclosure of the details and complete information as per the

Format provided by the Statute."

38. The learned counsel for the election petitioner further submitted that defect in verifi cation of an affi davit fi led by the election petitioner cannot be a ground to reject the election petition. In support of his submission, the learned counsel relied upon a judgment of the Hon'ble Supreme Court in A.Manju Vs. Prajwal Revanna alias Prajwal R. reported in 2021 SCC Online SC 1234.

39. As stated above, the averments in the election petition do not disclose any triable issue. That apart, election petition did not mention how the alleged defect materially affected the result of the election. It is well- settled law that election petition can be summarily rejected, if it does not furnish a complete cause of action as required under Order VII Rule 11 of CPC.

40. In Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari, reported in

2014 (5) SCC 312, the Hon'ble Supreme Court, in para 15, has held as follows:-

15. This Court has consistently held that the court cannot go beyond

the pleadings of the parties. The parties have to take proper pleadings

and establish by adducing evidence that by a particular irregularity/illegality,

the result of the election has been "materially affected". There can be no

dispute to the settled legal proposition that "as a rule relief not founded

on the pleadings should not be granted". Thus, a decision of the case

should not be based on grounds outside the pleadings of the parties. In

the absence of pleadings, evidence if any, produced by the parties, cannot

be considered. It is also a settled legal proposition that no party should

be permitted to travel beyond its pleadings and parties are bound to take

all necessary and material facts in support of the case set up by them.

Pleadings ensure that each side is fully alive to the questions that are

likely to be raised and they may have an opportunity of placing the relevant

evidence before the court for its consideration. The issues arise only when

a material proposition of fact or law is affi rmed by one party and denied

by the other party. Therefore, it is neither desirable nor permissible for a

court to frame an issue not arising on the pleadings."

41. In Udhav Singh v. Madhav Rao Scindia, reported in (1977) 1 SCC 511,

the Hon'ble Supreme Court has held as follows:-

41. Like the Code of Civil Procedure, this section also envisages a

distinction between "material facts"and "material particulars". Clause (a) of

24 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

sub-section (1) corresponds to Order 6 Rule 2, while clause (b) is analogous

to Order 6 Rules 4 and 6 of the Code. The distinction between "material

facts" and "material particulars" is important because different consequences

may fl ow from a defi ciency of such facts or particulars in the pleading.

Failure to plead even a single material fact leads to an incomplete cause of

action and incomplete allegations of such a charge are liable to be struck

off under Order 6 Rule 16 of the Code of Civil Procedure. If the petition

is based solely on those allegations which suffer from lack of material

facts the petition is liable to be summarily rejected for want of a cause

of action. In the case of a petition suffering from a defi ciency of material

particulars the court has a discretion to allow the petitioner to supply the

required particulars even after the expiry of limitation.

42. In V. Narayanaswamy v. C.P. Thirunavukkarasu, reported in (2000) 2 SCC 294, the Hon'ble Supreme Court has held that the election petition is liable to be dismissed, if it lacks material facts.

43. The next contention of the fourth respondent that already two election petitions with same averments have been fi led which came to be dismissed by this Court and the present application is barred by the principles of Res Judicata. However the said contention cannot be countenanced for the simple reason that even though this election petition is verbatim repetition of the earlier two election petition, those two election petitions have been dismissed not on merits but on technical grounds and not fi led by the petitioner, hence the principles of Res Judicata is not applicable to the instant case.

44. Considering all the above principles and the facts and circumstances of the instant case, this Court is of a considered view that the election petition does not disclose a cause of action, and failed to give rise to triable issues, and therefore it is only liable to be rejected.

45. In the result, the application in O.A.No.40 of 2022 fi led under Order VII Rule 11 of CPC is allowed and consequently the election petition in E.L.P.No.12 of 2021 is rejected. Consequently, the application in O.A.No.167 of 2022, seeking to amend affi davit in Form-25, is closed. No costs.

WITNESS, THE HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI, CHIEF JUSTICE, HIGH COURT AT MADRAS, AFORESAID THIS THE 28TH DAY OF APRIL 2022.

Sd./- ASSISTANT REGISTRAR

Original Side—II

//Certifi ed to be true copy//

Dated at Madras this the 9th day of May 2022.

COURT OFFICER (O.S.)

From 25th Day of September 2008 the Registry is issuing certifi ed copies of the Orders/Judgments/Decrees in this format.

25

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

PK

06/05/2022

ELP.No.12 OF 2021

&

OA.Nos.40 of 2022 & 167 of 2022

DECREE DATED: 28/04/2022

THE HON'BLE MR. JUSTICE

V. BHARATHIDASAN

FOR APPROVAL: 06/05/2022

APPROVED ON : 06/05/2022

Copy to:-

1. Returning Offi cer, No. 19, Chepauk - Thiruvellikeni Assembly Constituency, Chennai - 600 014.

2. Chief Electoral Offi cer, Tamil Nadu Public (Elections) Department, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai - 600 009.

3. The Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi.

(By Order)

M(cid:3465)(cid:3476)(cid:3465)(cid:3489) M(cid:3465)(cid:3476)(cid:3476)(cid:3473)(cid:3467)(cid:3475), Principal Secretary, Election Commission of India.

Secretariat, SATYABRATA SAHOO, Chennai-600 009, Chief Electoral Offi cer and 08th July, 2022. Principal Secretary to Government,

Public (Elections) Department.

PRINTED AND PUBLISHED BY THE C O M M I S S I O N E R O F S TAT I O N E RY A N D PRINTING, CHENNAI ON BEHALF OF THE GOVERNMENT OF TAMIL NADU