[ 1 ]
DTP—V-4 Ex.(410)—1
TAMIL NADU
GOVERNMENT GAZETTE
EXTRAORDINARY PUBLISHED BY AUTHORITY
No. 410]
CHENNAI, MONDAY, AUGUST 1, 2022
Aadi 16, Subakiruthu, Thiruvalluvar Aandu–2053
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.
2022
[Price : Rs. 9.60 Paise.
NOTIFICATION BY THE ELECTION COMMISSION OF INDIA
Judgement of the High Court of Madras in Election Petition No. 17 of 2016
No. SRO G-36/2022.
The following Notification of the Election Commission of India, Nirvachan Sadan,
Ashoka Road, New Delhi-110 001, dated 20th July, 2022 [29 Asadha, 1944 (Saka)]
is published:-
No. 82/TN-LA/ (EP 17 of 2016)/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 24.06.2022 in
Election Petition No. 17 of 2016.
2
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION)
FRIDAY, THE 24TH DAY OF JUNE 2022
THE HON’BLE MR. JUSTICE D.KRISHNAKUMAR
Election Petition No. 17 of 2016
and
O.A. Nos.560, 561 & 562 of 2021, 110 & 111 of 2022
ELP No. 17 of 2016
B.Ramkumar Adityan,
S/o.Mr.R.Balakrishna Adityan & Ms.Selvarathi,
No.563, Thoothukudi Road, Tiruchendur,
Thoothukudi District- 628 216
... Petitioner
Vs.
1.
Mr.Anitha R.Radhakrishnan,
S/o.Mr.V.Ramamoorthy,
No.21,North Street,
Thandupathy P.O., Tiruchendur Taluk,
Thoothukudi District – 628 208.
*2.
Election Commission of India,
Nirvachan Sadan,
Ashoka Road,
New Delhi – 110 001.
3.
The District Election Officer and Collector,
O/o. District Collector,
Collectorate Complex,
Korampallam,
Thoothukudi – 628 101.
4.
The Returning Officer and Revenue Divisional Officer.
O/o. Revenue Divisional Officer,
Tiruchendur Legislative Assembly Constituency,
Tiruchendur – 628 216.
... Respondents
*(Respondents 2 to 4 struck off from the array of respondents in ELP 17 of
2016 as per common order of this court dated 05.10.2017 made in O.A.Nos.409,
410 & 411 of 2017 in ELP 17 of 2016)*.
3
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
OA.Nos.560, 561 & 562 OF 2021:-
Anitha P. Radhakrishnan,
S/o. M.V. Ramamoorthy,
No.21,North Street,
Thandupathy P.O., Tiruchendur Taluk,
Thoothukudi District – 628 208.
... Applicant/1st Respondent
-Vs-
1.
B.Ramkumar Adityan,
S/o.Mr.R.Balakrishna Adityan & Ms.Selvarathi,
No.563, Thoothukudi Road, Tiruchendur,
Thoothukudi District - 628 216
... 1st Respondent/
Election Petitioner
*2.
Election Commission of India,
Nirvachan Sadan,
Ashoka Road,
New Delhi – 110 001.
3.
The District Election Officer and Collector,
O/o. District Collector,
Collectorate Complex,
Korampallam,
Thoothukudi District – 628 101.
4.
The Returning Officer and Revenue Divisional Officer,
O/o. Revenue Divisional Officer,
Tiruchendur Legislative Assembly Constituency,
Tiruchendur – 628 216.
... Respondents/Respondents
*(Respondents 2 to 4 struck off from the array of respondents in ELP 17 of
2016 as per common order of this court dated 05.10.2017 made in O.A.Nos.409,
410 & 411 of 2017 in ELP 17 of 2016)*.
OA.No.560 of 2021:
This Original Application praying that this Hon’ble Court be pleased to strike
off the Paragraph Nos.7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22,
23, 24, 25, 26, 27, 29 in Election Petition No.17 of 2016 as unnecessary, frivolous,
vexations and not existing or surviving as on this date, in view of the Applicant’s
term as Returned Candidate from No.215 Tiruchendur Constituency has come to
an end due to the General Tamil Nadu state Assembly Election held in the month
of 6th April 2021.
OA.No.561 of 2021:-
This Original Application praying that this Hon’ble Court be pleased to reject
the Election Petition No.17 of 2016 filed by the petitioner and consequently dismiss
the same.
4
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
OA.No.562 of 2021:-
This Original Application praying that this Hon’ble Court be pleased to dismiss
E.L.P.No.17 of 2016 as INFRUCTUOUS in the view of 16th General election held for
Tamil Nadu Legislative Assembly including for the Tiruchendur Assembly Constituency
on 6th April 2021.
OA.Nos.110 & 111 OF 2022:-
B.Ramkumar Adityan,
S/o.Mr.R.Balakrishna Adityan & Ms.Selvarathi,
No. 563, Thoothukudi Road, Tiruchendur,
Thoothukudi District – 628 216
... Applicant / Election Petitioner
-Vs-
1.
Mr. Anitha R. Radhakrishnan,
S/o.Mr.V.Ramamoorthy,
No.21,North Street,
Thandupathy P.O., Tiruchendur Taluk,
Thoothukudi District – 628 208.
*2.
Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi – 110 001.
3.
The District Election Officer and Collector,
O/o. District Collector,
Collectorate Complex, Korampallam,
Thoothukudi – 628 101.
4.
The Returning Officer and Revenue Divisional Officer,
O/o. Revenue Divisional Officer,
Tiruchendur Legislative Assembly Constituency,
Tiruchendur – 628 216.
... Respondents
*(Respondents 2 to 4 struck off from the array of respondents in ELP 17 of
2016 as per common order of this court dated 05.10.2017 made in O.A.Nos.409,
410 & 411 of 2017 in ELP 17 of 2016)*.
OA.No.110 OF 2022:-
This Original Application praying that this Hon’ble Court be pleased to pass
an Order in the Election Petition in ELP.No.17 of 2016 as per provisions of the
Order 8 Rule 10 of Civil Procedure Code read with Order V Rule 1 and Order V
Rule 5 of the Rules of the High Court, Madras Original Side 1994 for non-filing of
the Written Statement by the 1st Respondent.
OA.No.111 OF 2022:-
This Original Application praying that this Hon’ble Court be pleased to pass an
order in the Election Petition in ELP.No.17 of 2016 as per provisions of the Section
125 A (i) and (iii) of the Representation of People Act, 1951 for not furnishing
information and concealed information in the Affidavit in Form 26 during the Tiruchendur
Legislative Assembly General Election, 2016 by the 1st Respondent.
5
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
The above Original Applications and Election Petition having been heard on
04/03/2022 in the presence of Mr.M.Jothikumar assisted by Mr.A.Manoj Kumar,
Advocates for the Election Petitioner, for the applicant in OA.Nos. 110 & 111 of 2022
and for the Respondent in OA.No.560 to 562 of 2021; and of Mr.N.R.Elango, Senior
counsel for M/s.S.Vijayakumar, Durai Gunasekaran & P.Praveen Kumar, Advocates for
the applicant in OA.Nos.560 to 562 of 2021 and for the 1st Respondent in Election
Petition and for the respondent in OA.Nos.110 & 111 of 2022; and upon reading the
Election Petition, Affidavit, and Judge’s Summon, Affidavit of B.Ramkumar Adityan
filed in OA.No.110 & 111 of 2022, and common counter affidavit filed in OA.Nos.560
to 562 of 2021 and Judges summon and affidavit of Anitha R.Radhakrishnan filed
in OA.Nos.560 to 562 of 2021 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 having observed that there is no specific
allegation of corrupt practice in the election petition and the old Assembly is no
longer is in existence and fresh elections were held on 06/04/2021, and
it is ordered as follows:-
That the Paragraph Nos. 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18,
19, 20, 21, 22, 23, 24, 25, 26, 27, 29 in Election Petition No.17 of 2016
as unnecessary, frivolous, vexations and not existing or surviving as on
this date, in view of the applicants term as Returned Candidate from
No.215 Tiruchendur Constituency has come to an end due to the General
Tamil Nadu State Assembly Election held in the month of 6th April 2021 be and
are hereby struck off.
2. That the Election Petition No.17 of 2016 be and is hereby Rejected and
dismissed as infructuous.
3. That the Original Application Nos. 110 & 111 of 2022 be and are hereby
dismissed.
4. That there shall be no order as to cost.
WITNESS, THE HON’BLE MR.JUSTICE MUNISHWAR NATH BHANDARI,
CHIEF JUSTICE, HIGH COURT AT MADRAS, AFORESAID THIS THE 24TH DAY
OF JUNE 2022.
Sd./-
ASSISTANT REGISTRAR
Original Side – II
//Certified to be true copy//
Dated at Madras this the 4th day July of 2022.
COURT OFFICER (O.S.)
From 25th Day of September 2008 the Registry is issuing certified copies of the
Orders/Judgments/Decrees in this format.
6
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
PK
30/06/2022
Election Petition No. 17 of 2016
and
OA.Nos. 560, 561 & 562 of 2021,
110 & 111 of 2022
DECREE DATED: 24/06/2022
T H E
H O N ’ B L E
M R .
J U S T I C E
D.KRISHNAKUMAR
FOR APPROVAL: 01/07/2022
APPROVED ON :01/07/2022
Copy to:-
1. The Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi.
2. The Returning Officer and Revenue
Divisional Officer,
O/o. Revenue Divisional Officer,
Tiruchendur Legislative Assembly
Constituency,
Tiruchendur – 628 216.
7
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION)
FRIDAY, THE 24TH DAY OF JUNE 2022
THE HON’BLE MR. JUSTICE D.KRISHNAKUMAR
Election Petition No. 17 of 2016
and
O.A. Nos.560, 561 & 562 of 2021, 110 & 111 of 2022
ELP No. 17 of 2016
B.Ramkumar Adityan,
S/o.Mr.R.Balakrishna Adityan & Ms.Selvarathi,
No.563, Thoothukudi Road, Tiruchendur,
Thoothukudi District- 628 216
... Petitioner
Vs.
1.
Mr.Anitha R.Radhakrishnan,
S/o.Mr.V.Ramamoorthy,
No.21,North Street,
Thandupathy P.O., Tiruchendur Taluk,
Thoothukudi District – 628 208.
*2.
Election Commission of India,
Nirvachan Sadan,
Ashoka Road,
New Delhi – 110 001.
3.
The District Election Officer and Collector,
O/o. District Collector,
Collectorate Complex,
Korampallam,
Thoothukudi – 628 101.
4.
The Returning Officer and Revenue Divisional Officer,
O/o. Revenue Divisional Officer,
Tiruchendur Legislative Assembly Constituency,
Tiruchendur – 628 216.
... Respondents
*(Respondents 2 to 4 struck off from the array of respondents in ELP 17 of
2016 as per common order of this court dated 05.10.2017 made in O.A.Nos.409,
410 & 411 of 2017 in ELP 17 of 2016)*.
8
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
OA.Nos.560, 561 & 562 OF 2021:-
Anitha P. Radhakrishnan,
S/o.M.V. Ramamoorthy,
No.21,North Street,
Thandupathy P.O., Tiruchendur Taluk,
Thoothukudi District – 628 208.
... Applicant/1st Respondent
-Vs-
1.
B.Ramkumar Adityan,
S/o.Mr.R.Balakrishna Adityan & Ms.Selvarathi,
No.563, Thoothukudi Road, Tiruchendur,
Thoothukudi District - 628 216
... 1st Respondent/
Election Petitioner
*2.
Election Commission of India,
Nirvachan Sadan,
Ashoka Road,
New Delhi – 110 001.
3.
The District Election Officer and Collector,
O/o. District Collector,
Collectorate Complex,
Korampallam,
Thoothukudi District – 628 101.
4.
The Returning Officer and Revenue Divisional Officer,
O/o. Revenue Divisional Officer,
Tiruchendur Legislative Assembly Constituency,
Tiruchendur – 628 216.
... Respondents/Respondents
*(Respondents 2 to 4 struck off from the array of respondents in ELP 17 of
2016 as per common order of this court dated 05.10.2017 made in O.A.Nos.409,
410 & 411 of 2017 in ELP 17 of 2016)*.
OA.No.560 of 2021;-
This Original Application praying that this Hon’ble Court be pleased to strike
off the Paragraph Nos.7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22,
23, 24, 25, 26, 27, 29 in Election Petition No.17 of 2016 as unnecessary, frivolous,
vexations and not existing or surviving as on this date, in view of the Applicants
term as Returned Candidate from No.215 Tiruchendur Constituency has come to
an end due to the General Tamil Nadu State Assembly Election held in the month
of 6th April 2021.
OA.No.561 of 2021;-
This Original Application praying that this Hon’ble Court be pleased to reject
the Election Petition No.17 of 2016 filed by the petitioner and consequently dismiss
the same.
9
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
OA.No.562 of 2021;-
This Original Application praying that this Hon’ble Court be pleased to dismiss
E.L.P.No.17 of 2016 as INFRUCTUOUS in the view of 16th General election held for
Tamil Nadu Legislative Assembly including for the Tiruchendur Assembly constituency
on 6th April 2021.
OA.Nos.110 & 111 OF 2022:-
B.Ramkumar Adityan,
S/o. Mr. R. Balakrishna Adityan & Ms.Selvarathi,
No. 563, Thoothukudi Road, Tiruchendur,
Thoothukudi District – 628 216
... Applicant/ Election Petitioner
-Vs-
1.
Mr.Anitha R.Radhakrishnan,
S/o.Mr.V.Ramamoorthy,
No.21,North Street,
Thandupathy P.O., Tiruchendur Taluk,
Thoothukudi District – 628 208.
*2.
Election Commission of India,
Nirvachan Sadan,
Ashoka Road,
New Delhi – 110 001.
3.
The District Election Officer and Collector,
O/o. District Collector,
Collectorate Complex,
Korampallam,
Thoothukudi – 628 101.
4.
The Returning Officer and Revenue Divisional Officer.
O/o. Revenue Divisional Officer,
Tiruchendur Legislative Assembly Constituency,
Tiruchendur – 628 216.
... Respondents
*(Respondents 2 to 4 struck off from the array of respondents in ELP 17 of
2016 as per common order of this court dated 05.10.2017 made in O.A.Nos.409,
410 & 411 of 2017 in ELP 17 of 2016)*.
OA.No.110 OF 2022:-
This Original Application praying that this Hon’ble Court be pleased to pass an
Order in the Election Petition in ELP.No.17 of 2016 as per provisions of the Order 8
Rule 10 of Civil Procedure Code read with Order V Rule 1 and Order V Rule 5 of
the Rules of the High Court, Madras Original Side 1994 for non-filing of the Written
Statement by the 1st Respondent.
10
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
OA.No.111 OF 2022:–
This Original Application praying that this Hon’ble Court be pleased to pass
an order in the Election Petition in ELP.No.17 of 2016 as per provisions of the
Section 125 A (i) and (iii) of the Representation of People Act 1951 for not furnishing
information and concealed information in the Affidavit in Form 26 during the Tiruchendur
Legislative Assembly General Election 2016 by the 1st Respondent.
The above Original Applications and Election Petition having been heard on
04/03/2022 in the presence of Mr.M.Jothikumar assisted by Mr.A.Manoj Kumar,
Advocates for the Election Petitioner, for the applicant in OA.Nos. 110 & 111 of 2022
and for the Respondent in OA.No.560 to 562 of 2021; and of Mr.N.R.Elango, Senior
counsel for M/s.S.Vijayakumar, Durai Gunasekaran & P.Praveen Kumar, Advocates for
the applicant in OA.Nos.560 to 562 of 2021 and for the 1st Respondent in Election
Petition and for the respondent in OA.Nos. 110 & 111 of 2022; and upon reading
the Election Petition, Affidavit, and judges Summon, Affidavit of B.Ramkumar Adityan
filed in OA.No.110 & 111 of 2022, and common counter affidavit filed in OA.Nos.560
to 562 of 2021 and Judges summon and affidavit of Anitha R.Radhakrishnan filed
in OA.Nos.560 to 562 of 2021 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
The court made the following order: –
These original applications have been filed for the following relief:
(i) O.A.No.560 of 2021 to strike off Paragraph Nos.7 to 27 & 29 in the
Election Petition No. 17 / 2016 as unnecessary, frivolous, vexatious and not existing
or surviving as on this date, in view of the applicant’s term as Returned Candidate
from No.215, Tiruchendur Constituency has come to an end due to the General
Tamil Nadu State Assembly Election held in the month of 6th April, 2021.
(ii) O.A.No.561 of 2021 to reject the Election Petition No. 17 of 2016 filed
by the petitioner and consequently, dismiss the same.
(iii) O.A.No.562 of 2021 to dismiss E.L.P.No.17 of 2016 as infructuous in
view of 16th General Election held for Tamil Nadu Legislative Assembly including
for the Tiruchendur Assembly Constituency on 6th April, 2021.
For the sake of convenience, the array of parties in the original applications have
been adopted.
2. The first respondent / election petitioner has filed ELP No. 17 of 2016 under
Sections 80, 80A, 81, 83, 84, 100 (l)(d)(i), 125A of Representation of Peoples Act
1951 [in short “RP Act”], Rules 4, 4 A, 8 and 10 of the Conduct of Election Rules,
1961 to declare that election of the returned candidate, namely the applicant herein
from No.215, Tiruchendur Legislative Assembly Constituency, Thoothukudi District,
Tamil Nadu held on 16.05.2016, in which results have been declared on 19.05.2016,
as void.
11
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
BRIEF FACTS OF THE CASE
3. The applicant was elected from No.215, Tiruchendur Assembly Constituency
in the 15th General Assembly Election held on 16.05.2016 and he was declared
as a successful returned candidate from the said Constituency on 19.05.2016. The
first respondent/election petitioner, being a voter and a Law Graduate, has filed the
present election petition questioning the acceptance of the applicant’s nomination
dated 25.04.2016 by the Returning Officer of Tiruchendur Assembly Constituency
on the following two grounds:
(i)
Insufficient disclosure of educational qualification and
(ii) Incomplete information of criminal antecedents.
4. The brief case of the applicant, as averred in the affidavit filed in support of
O.A.No.560 of 2021, are as follows:
4.1. The applicant was sponsored by the political party “Dravida Munnetra
Kazhagam” as a candidate to contest the election from No.215, Tiruchendur Assembly
Constituency in the election scheduled on / 16.05.2016. The applicant filed duly filled
nomination by furnishing necessary details along with the affidavit in Form No.26,
as per the directive of the Election Commission of India.
4.2. The nomination filed by the applicant on 25.04.2016 was taken up by the
Returning Officer of Tiruchendur Constituency for scrutiny on 30.04.2016, along with
the nominations filed by other candidates. The Returning Officer, after verifying the
contents disclosed by the applicant in the affidavit filed in Form No.26 filed along
with the nomination, accepted the nomination.
4.3. According to the applicant, he has clearly disclosed and revealed the details
of the criminal cases pending against him in the appropriate columns stipulated in
Clause 5(i)(a) 4 cases, 5(i)(b) 4 cases, 5(i)(c) 4 cases in Form 26 Affidavit, which
is sufficient for the voters of Tiruchendur Assembly Constituency, to know about
the details of criminal antecedents of the applicant. According to the applicant, in
the affidavit in Form 26, he has furnished the following criminal cases in Crime
Nos.4/06, 67/2011, 185/2011 and 187/2011, which are pending at different stages
before the Principal District Judge Court and Special Court for trial of MP/MLA cases
in SC.Nos.3/2019, 139/2019, 14/2019 and 140/2019.
4.4 According to the applicant, he has fairly disclosed all the details of criminal
cases in the nomination form filed on 25.04.2016 and contested the election held on
16.05.2016 and successful in the election and the acceptance of nomination of the
applicant by the Returning Officer was perfectly valid, without any defects/infraction
whatsoever, as alleged by the respondent/election petitioner.
4.5. According to the applicant, in Column 10 in Part A and Column 11 in
Part B of the affidavit in Form 26, he has stated that he has studied 10th Standard
at Bishop Assariya Memorial High School, Vellalanvilai, Tiruchendur Taluk.
The respondent/election petitioner has alleged that the applicant has not mentioned
the year of completion of 10th standard and leaving it as blank column, which is
substantial in character and the Returning Officer has committed an error in accepting
the nomination or the applicant.
12
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
4.6. The applicant further submits that soon after declaring the
applicant as a returned candidate from No.215, Tiruchendur Constituency
on 19.05.2016, the applicant functioned as an MLA belonging to
Dravida Munnetra Kazhagam party and the term of 5 years office of the
15th Tamil Nadu State Assembly came to an end after the announcement of fresh
election for the 16th Tamil Nadu State Assembly Constituency.
4.7. The applicant also submits that he has been nominated and sponsored as
a candidate by the “Dravida Munnetra Kazhagam” party to contest the election held
on 06.04.2021 and he was declared successful on 02.05.2021 and functioning now
as a Member of the Legislative Assembly (MLA), representing No.215, Tiruchendur
Constituency, pursuant to the General Election held on 06.04.2021 and therefore,
the election petition itself has become infructuous. According to the applicant, the
averments in the election petition are purely academic and vexatious and the
respondent/election petitioner cannot be allowed to prolong and keep the infructuous
election petition pending.
4.8. It is specifically contended by the applicant that there is no allegation as
against the applicant for corrupt practice, unduly influencing specific allegation of
corrupt practice in the election petition, on completion of the term of office of the
15th Tamil Nadu State Assembly, the election petition cannot be entertained and
therefore seeks for striking off the pleadings and consequently, prays for rejection
of the election petition as infructuous.
5. The first respondent / election petitioner has filed a common counter affidavit
in these original applications stating as follows:
5.1. According to the first respondent/election petitioner, the applicant has filed
incomplete nomination form and the Returning Officer did not properly scrutinize the
nomination of the applicant and improperly accepted the same.
5.2. According to the first respondent/election petitioner, the applicant had
furnished about the details of criminal cases pending against him, where the Court
has taken cognizance, but did not furnish short description of the offences for which
cognizance was taken in Columns 5(i)(b) and 5(ii)(b) of the affidavit in Form 26,
which is very much crucial.
5.3. There are 3 Sub Columns in Column 10 in Part A and Column 11 in
Part B, in which the applicant has stated about the completion of 10th Standard at
Bishop Assariya Memorial High School, Vellalanvilai, Tiruchendur Taluk, but he did
not furnish the year of complexion of 10th Standard.
5.4. According to the respondent/election petitioner, the applicant has not
furnished detailed information regarding the details of criminal cases pending before
the Investigating Officer and before the Courts concerned and thereby, he has violated
Section 33-A(1) of the RP Act and in this regard, placed reliance upon the decision
of the Hon’ble Apex Court in Union of India v. Association of Democratic Reforms
and another reported in [(2002) 5 SCC 294], wherein it was observed that if there
was a disclosure by a candidate with regard to his criminal antecedents, assets and
liabilities and educational qualification, then it would strengthen the voters in taking
appropriate decision of casting their votes.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
5.5. According to the respondent/election petitioner, non-filing of information
about criminal cases and educational qualification and keeping blank spaces in the
nomination is a very serious issue and substantial in character and the Returning
Officer ought to have rejected the nomination of the applicant and in this regard
placed reliance upon the decision of the Hon’ble Apex Court in Shaligram Shrivastva
vs. Naresh Singh Patel [(2003) 2 SCC 176].
5.6. According to the respondent/election petitioner, nondisclosure of vital
information in Form 26 would amount to corrupt practice and therefore, the election
petition cannot be rejected at the threshold stage and it needs detailed enquiry by
framing of issues and therefore, prays for dismissal of these original applications.
SUBMISSION OF COUNSEL FOR THE PARTIES
6. Mr.N.R.Elango, learned Senior Counsel for Mr.S.Vijayakumar, learned counsel
for the applicant made the following submissions / contentions:
(i) The election petition has been filed under Sections 80, 80A, 81, 83,
84, 100(l)(d)(i), 125A of the RP Act and Rules 4, 4A, 8, and 10 of
the Conduct of Election Rules, 1961 and the first respondent/election
petitioner has not filed the election petition under Section 123 of the
RP Act, 1951, which deals with corrupt practices.
(ii) Since the election petition has not been filed on the ground of corrupt
practice and further, fresh elections have already taken place and the
old assembly is no longer in existence, the election petition would
be rendered infructuous, because it would only be of an academic
interest.
(iii) There is no specific allegation of suppression of material fact, but the
only allegation is that the applicant has not disclosed full information
about the criminal antecedents and the year of completion of his
SSLC qualification.
(iv) In the absence of any specific allegation of corrupt practice, the first
respondent/election petitioner cannot question the acceptance of
nomination under Form 26 by the Returning Officer.
(v) The election petition itself is not maintainable, as the cause of action
of the election held for the 15th General Tamil Nadu State Assembly
term has come to an end and therefore, the election petition is liable
to be dismissed as infructuous, in view of fresh election held for the
16th Tamil Nadu Legislative Assembly on 06.04.2021, in which the
applicant has been elected as a Member of Legislative Assembly
representing No.215, Tiruchendur Constituency.
The learned Senior Counsel for the applicant, in support of his submissions, has
placed reliance upon the following decisions:
(i) Abdul Hussain v. Rajiv Gandhi [AIR 1986 SC 1253]
(ii)
Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi
[AIR 1987 SC 1577]
14
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(iii) P.H.Pandian v. P.Veldurai and another [(2013) 14 SCC 685]
(iv) Krishnamoorthy v. Sivakumar and Others [(2015) 3 SCC 467]
(v) V.Anbazhagan v. A Laser and 13 others [Order dated 27.04.2016 in
ELP.No. 7 of 2011]
(vi) R.Sakkarapani v. K.Karuppasamy [Order dated 05.06.2018 in
O.A.Nos.1052 and 1053 of 2017 in ELP.No.13 of 2016
(vii) Gayad Ram v. Pratap Singh Bhati [ Civil Writ Petition No.2031 / 2020
dated 18.02.2020 – High Court of Rajasthan at Jodhpur]
(viii) Prempal Singh v. Satya Pal Singh Baghel [Judgement dated 03.03.2020
in ELP.No.12/2017].)
7.
Per contra, Mr.M.Jothikumar, learned counsel for the first respondent/
election petitioner has made the following submissions/ contentions:
(i)
The election petition filed against a returned candidate does not abate
or become infructuous on the dissolution of assembly.
(ii) The applicant had filed incomplete, defective nomination and concealed
information, which materially amounting to undue influence on the
part of the applicant.
(iii) The voter’s right to know the criminal antecedents of the candidate
contesting for election for Member of Parliament or Member of
Legislative Assembly is much more fundamental and basic for survival
of democracy, as laid down by the Hon’ble Apex Court in Union of
India v. Association for Democratic Reforms [(2002) 5 SCC 294].
(iv) Section 123(2) of the RP Act, 1951 reads that “Undue influence,
that is to say, any direct or indirect interference or attempt to interfere
on the part of the candidate or his agent, or of any other person 7
[with the consent of the candidate or his election agent], with the free
exercise of any electoral right”. Reliance has been placed upon the
decision in Krishnamoorthy v. Sivakumar [(2015) 3 SCC 467].
(v) The applicant in Column 10 in Part A and Column 11 in Part B of
the Affidavit in Form 26 has stated that he studied 10th standard at
Bishop Assariya Memorial School, Vellalanvilai, Tiruchendur Taluk,
but left blank the year of completion column.
(vi) In Column (5)(i) of Part A of Form 26, every candidate has to furnish
the details of pending criminal cases, in which charges have been
framed by the Court for an offence punishable with imprisonment for
two years or more. In Column 5(i)(a) every candidate has to furnish
about case / FIR Nos. together with complete details of concerned
police station / District / State and in Column 5(i)(b), every candidate
has to furnish Sections of the concerned Acts and short description
of the offences for which charged. The applicant kept blank spaces
15
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
where short description of the offences for which charge has to be
furnished.
(vii) The applicant is guilty of Section 125 A (i) of the RP Act, 1951.
(viii) Where the tenure of office of the Legislative Assembly had come
to an end, the question of qualification or disqualification would not
become academic, since invalidation eventually may give rise to liability
to refund the allowance received by a Member of the Legislative
Assembly, as held by the Hon’ble Apex Court in Moti Ram v. Parm
Dev & Anr. [AIR 1993 SC 1662].
The learned counsel for the respondent/election petitioner, in support of his
submissions, has also placed reliance on the following decisions:
(i)
Sheodhan Singh v. Mohan Lal Gautam [AIR 1969 SC 1024]
(ii)
Union of India v. Association for Democratic Reforms [(2002)
5 SCC 294]
(iii) Krishnamoorthy v. Sivakumar & Ors. [Order dated 15.06.2009 in
CRP (NPD) No.3076 of 2008]
(iv) Resurgence India v. Election Commission of India & Anr.
[Order dated 13.09.2013 in WP (Civil) No.121 of 2008]
(v) Krishnamurthy v. Sivakumar & Ors. [(2015) 3 SCC 467]
(vi) P. Veldurai v. Tamil Nadu Legislative Assembly
[Order dated 06.02.2019 in W.P.No.30102 of 2011]
8. This Court has anxiously considered the rival submissions and also perused
the entire materials available on record.
9. The applicant earlier had filed an application in O.A.No.412 of 2017 for
non-compliance of the mandatory provisions of the RP Act, 1951 and the said
application was dismissed by this Court on 17.06.2020. The matter has been adjourned
on several occasions at the instance of both sides and even during pandemic period,
the matter has been heard through virtual mode as well as physical mode and in the
meantime, the applicant has filed the present applications for the aforesaid prayer.
DISCUSSION
10. Before proceeding to the points for consideration, let this Court shall consider
the power of this Court under Order VI Rule 16 Civil Procedure Code to strike out
the pleadings, which reads as follows:
“16. Striking out pleadings: The Court may at any stage of the proceedings
order to be struck out or amended any matter in any pleading:
(a) which may be unnecessary, scandalous, frivolous or vexatious,
or
(b) which may tend to prejudice, embarrass or delay the fair trial of
the suit, or
16
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(c) which is otherwise an abuse of the process of the Court.”
A reading of the above provision reveals that there is no suo motu power conferred
on the Court under this provision to strike off the pleadings. The Court can exercise
this power only when a party files an application to strike off the pleadings. This
Court must give an opportunity to other party to rebut the contentions raised in the
application. Only when-the Court comes to the conclusion that the pleadings of the
party is liable to be struck off for any of the grounds mentioned in Order VI Rule
16 C.P.C., the Court can strike off the pleadings at any stage of the suit. The words
on its own motion, is not included in Order VI Rule 16 C.P.C.
11. The Hon’ble Apex Court in S.Malla Reddy v. Future Builders Cooperative
Housing Society and others [(2013) 9 SCC 349 ] held as follows:
“25. Order 6 Rule 16 CPC has been substituted by the CPC (Amendment)
Act, 1976. This provision deals with the amendment or striking out of the pleadings,
which a party desires to be made in his opponent’s pleadings. In other words, the
plaintiff or the defendant may ask the Court for striking out the pleadings of
his opponent on the ground that the pleadings are shown to be unnecessary,
scandalous, frivolous or vexatious. This Rule is based on the principle of ex
debito justitiae. The Court is empowered under this Rule to strike out any matter in
the pleadings that appears to be unnecessary, scandalous, frivolous or vexatious
or which tends to prejudice, embarrass or delay the fair trial of the suit. In the said
judgment, it has been held that the plaintiff or defendant may ask the Court for
striking off the pleadings of his opponent on the ground that the pleadings are shown
to be unnecessary, scandalous, frivolous or vexatious or which tends to prejudice,
embarrass or delay the fair trial of the suit.”
(emphasis supplied)
In view of the judgement of the Hon’ble Apex Court as referred to supra, only when
a party seeks striking off the pleadings of his opponent, the Court can consider the
same and pass orders as per Order VI Rule 16 C.P.C. Admittedly, in the case on
hand, the applicant has filed O.A.No. 560 of 2021 to strike off Paragraph Nos.7 to
27 & 19 in the Election Petition No. 17 / 2016 as unnecessary, frivolous, vexatious
and not existing or surviving as on date.
12. An election petition can be rejected under Order 7 Rule 11(a) CPC, if it
does not disclose a cause of action. Pleadings could also be struck off under Order
VI Rule 16, if they are scandalous, frivolous or vexatious, even before filing written
statement. In an election petition, the fact which constitutes the corrupt practice must
be stated and the fact must be correlated to one of the heads of corrupt practice.
When the paragraphs in the plaint do not justify the essential requirement under
Section 83 of the Representation of People Act, those paragraphs have to be struck
off. Therefore, the instant applications filed by the applicant is maintainable.
13. The contention of the applicant that he has furnished the details of his
educational qualification in Column 10 in Part A and Column 11 in Part B of the
affidavit in Form 26 filing along with nomination that he has studied 10th Standard
at Bishop Assariya Memorial High School, Vellalanvilai, Tiruchendur Taluk and he
has not suppressed any material fact and non-disclosure of year of completion of
17
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
educational qualification would not attract the provisions of Section 123 of the RP
Act, 1R51, which deals with corrupt practice. The respondent/election petitioner has
not placed any material before this Court to deny the said contention of the applicant
that non-disclosure of year of completion of educational qualification would not amount
to corrupt practice, unduly influencing the mind of the voters. Therefore, accepting
the said contention of the applicant, mere non-disclosure of the year of completion
of educational qualification would not amount to corrupt practice as defined under
Section 123 of the RP Act, 1951.
14. The contention of the parties concerned would impress upon this Court to
decide the following questions in these original applications:
(i)
Whether the respondent/election petitioner has made out an
allegation of corrupt practice against the applicant in the present
election petition?
(ii) Whether the election petition is liable to be dismissed as
infructuous?
QUESTION. No. 1
15. Let this Court shall consider the relevant provision under Section 123 of
the Representation of the People Act, 1951, which elaborately deals with Corrupt
Practices and more particularly, Section 123(2) of the Representation of the People
Act, 1951 reads that “Undue influence, that is to way, any direct or indirect
interference or attempt to interfere on the part of the candidate or his agent, or
of any other person [with the consent of the candidate or his election agent],
with the free exercise of any electoral right”.
16. According to the applicant, the respondent/election petitioner has not made
any specific allegation of corrupt practice as against the applicant in the averments/
pleadings made in the election petition and since the tenure of office of the
Tamil Nadu State Assembly has already come to an end during May 2021, the
election petition itself has become infructuous. The learned Senior Counsel for the
applicant has drew the attention of this Court to Column No.5 in Form 26 affidavit
filed along with the nomination form, which prescribes the following details to be
furnished by the candidate in the nomination form to contest in the elections:
5(a) — F.I.R. No. with name and address of Police Station concerned. .
5(b) – Case No. with Name of the Court
5(c) —Sections of concerned Acts/Codes involved
5(d) – Brief description of offence
5(e) – Whether charges have been framed (mention Yes or No)
5(f) — If answer against item (e) above is Yes. then give the date
on which charges were framed. .
5(g) – Whether any Appeal/Application for revision has been filed
against the proceedings (Mention Yes or No).
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
17. According to the applicant, it has been specifically alleged by the respondent/
election petitioner that the applicant has not specified the details as required under
Column 5(d), namely brief description of offences in the affidavit in Form 26. According
to the applicant, as per the statutory provision, he has furnished brief description
of the offences as to the applicant’s involvement in the criminal cases, which are
pending before the concerned criminal Courts. The learned Senior Counsel for
the applicant contended that the particulars furnished by the applicant will satisfy
the requirements of Column 5(d) of the affidavit in Form 26 and now the voters
having easy access to know about the particulars of the applicant’s involvement in
the criminal cases, nature of the offences, gravity of the offences and other details
and therefore, the applicant is not guilty of Section 125A of the RP Act, 1951. The
learned Senior Counsel for the applicant has mainly relied upon the decisions in
Azhar Hussain v. Rajiv Gandhi [AIR 1986 SC 1253], Dhartipakar Madan Lai
Agarwal v. Shri Rajiv Gandhi [AIR 1987 SC 1577], P.H.Pandian v. P.Veldurai and
Others [(2013) 4 SCC 685] and the order dated 27.04.2016 in E.L.P.No.7/2016
[V.Anbazhagan v. A.Lazer and Others].
18. According to the respondent/election petitioner, the applicant has not
furnished the brief description of the offences as to the applicants involvement
in criminal cases as required under Column 5(d) of the affidavit in Form 26 filed
along with the nomination and the said non-disclosure would amount to corrupt
practice unduly influencing the mind of the voting public. The learned counsel for
the respondent/election petitioner has mainly relied upon the decision of a learned
Single Judge of this Court in Krishnamoorthy v. Sivakumar and Others [Order
dated 15.06.2009 in CRP(NPD)No.3076 of 2009.
19. The entire submission of the parties revolves around Column 5(d) of
the affidavit in Form 26 filed along with the nomination form. On a perusal of the
details furnished by the applicant in the affidavit in Form 26, it could be seen that
Column 5(d) requires only brief description of the offences as to the applicant’s
involvement in criminal cases, for which the applicant has given the brief description
of the offences for appropriate crime numbers. The Column 5(d) of the affidavit in
Form 26 does not specifically indicate that the details of criminal cases should be
elaborately described and as a voter, one can easily understand the short crux of the
case details on going through the details furnished by the applicant in the affidavit
in Form 26. Therefore, the contention of the respondent/election petitioner that the
applicant has furnished incomplete information of his criminal antecedents, cannot
be countenanced and the same is liable to be rejected.
20. Let this Court shall also consider the decisions relied on by the learned
Senior Counsel for the applicant.
20.1. The Hon’ble Apex Court in the decision in Azhar Hussain v. Rajiv Gandhi
[AIR 1986 SC 1253] has observed as under:
“An election petition can be and must be dismissed under the
provisions of Civil Procedure Code, if the mandatory requirements enjoyed by
Section 83 to incorporate the materials facts and particulars relating to alleged
corrupt practice in the election petition are not complied with. The code of Civil
Procedure applies to trial of an election petition by virtue of Section 87 of the Act.
19
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Since CPC is applicable, the Court trying the election petition can act in exercise of
powers of the Code including Order 6 Rule 16 and Order 7 Rule 11(a). Therefore
that Section 83 does not find a place in Section 86 of the Act which authorizes
dismissal of election petitions in certain petitions in certain contingencies does not
mean that powers under CPC cannot be exercised. An election petition can be
summarily dismissed if it does not furnish cause of action in exercise of the
powers under the Civil Procedure Code and it is a settled law that omission
of a single material fact would lead to an incomplete cause of action and that
an election petition without the material facts relating to a corrupt practice is
not an election petition at all.”
(emphasis supplied)
20.2. In Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi [AIR 1987
SC 1577], the Hon’ble Supreme Court has observed as under:
“8. On a combined reading of Sections 81, 83, 86 and 87 of the Act,
it is apparent that those paragraphs of a petition which do not disclose any
cause of action are liable to be struck off under Order VI Rule,16, as the Court
is empowered at any stage of the proceedings to strike out or delete pleading
which is unnecessary, scandalous, frivolous or vexatious or which may tend
to prejudice, embarrass or delay the fair trial of the petition or suit. It is the
duty of the Court to examine the plaint and it need not wait till the defendant files
written statement and points out the defects. If the court on examination of the
plaint or the election petition finds that it does not disclose any cause of action it
would be justified in striking out the pleadings. Order VI Rule 16 itself empowers
the Court to strike out pleadings at any stage of the proceedings which may even
be before the filing of the written statement by the respondent or commencement of
the trial. If the Court is satisfied that the election petition does not make out
any cause of action and that the trial would prejudice, embarrass and delay
the proceedings, the court need not wait for the filing of the written statement
instead it can proceed to hear the preliminary objections and strike out the
pleadings. If after striking out the pleadings the court finds that no triable
issues remain to be considered, it has power to reject the election petition
under Order VII Rule 11.
(emphasis supplied)
14. The Representation of the People Act is a complete and self-contained
code within which any rights claimed in relation to an election or an election dispute
must be found. The provisions of the Civil Procedure Code are applicable to the
extent as permissible by Section 87 of the Act. The scheme of the Act as noticed
earlier would show that an election can be questioned under the statute as provided
by Section 80 on the grounds as contained in Section 100 of the Act. Section 83
lays down a mandatory provision in providing that an election petition shall contain
a concise statement of material facts and set forth full particulars of corrupt practice.
The pleadings are regulated by Section 83 and it makes it obligatory on the election
petitioner to give the requisite facts, details and particulars of each corrupt practice
with exactitude. If the election petition fails to make out a ground under Section
100 of the Act it must fail at the threshold. Allegations of corrupt practice are in the
20
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
nature of criminal charges, it is necessary that there should be no vagueness in the
allegations so that the returned candidate may know the case he has to meet. If the
allegations are vague and general and the particulars of corrupt practice are
not stated in the pleadings, the trial of the election petition cannot proceed
for want of cause of action. The emphasis of law is to avoid a fishing and
roving inquiry.”
20.3. In P.H.Pandian v. P.Veldurai and Others [(2013) 4 SCC 685] the Hon’ble
Supreme Court observed as under:
“It is a settled practice of Supreme Court not to pronounce upon matters which
are only of an academic interest. Once the charge of corrupt practice fails, rest
of the appeal would be rendered infructuous because fresh elections have
already taken place and the old Assembly is no longer in existence. Even if the
appellant was to succeed on the issue that the returned candidate had a subsisting
contract with the Panchayat Union and the State Government and was, therefore,
disqualified to be chosen for the seat under Section 9-A of the Representation of
the People Act, 1951, it would only be of an academic interest.” (emphasis supplied)
20.4. Following the aforesaid decisions, a learned Single Judge of this Court
in E.L.P.No.7 of 2011 dated 27.04.2016 [V.Anbazhagan v. A.Laser and Others]
has elaborately observed as under:
“50. In Mundrika Singh Yadav vs. Shiv Bachan Yadav and others ((2005)
12 SCC 211), an election petition under Sections 80 and 80-A of the Representation
of the People Act, 1951 filed by the appellant was dismissed by the High Court. In
the above said election petition, the appellant had sought for the relief of recount of
ballot papers. The High Court on trial found a case in that regard having not been
made out. The election to the Bihar State Assembly forming subject-matter of the
election petition was held in the year 2000. The term of the Legislative Assembly
was over. Fresh elections were being held. Under these circumstances, the Apex
Court has held that no relief could be allowed to the appellant in this appeal even
if this appeal is allowed. The appeal was rendered infructuous and was dismissed
accordingly.
51. In P.H. Pandian vs. P. Veldurai and another ((2013) 14 SCC 685),
an appeal under Section 116-A of the Representation of the People Act, 1951 was
filed questioning the judgment and order made by this Court in the election petition
in ELP.No.1 of 1996 on 29.12.1999.
52. In this case, the Apex Court has observed that though fresh elections
have since been held to Tamil Nadu Legislative Assembly and to an extent this
appeal has been rendered infructuous, the manner in which the election petition was
dealt with by the High Court causes us concern and that necessitates our making
reference to some salient facts.
53. Ultimately, the Apex Court has observed that it is a settled practice
of Supreme Court not to pronounce upon matters which are only of an academic
interest. Once the charge of corrupt practice fails, rest of the appeal would be
rendered infructuous because fresh elections have already taken place and the
old Assembly is no longer in existence. Even if the appellant was to succeed on
21
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
the issue that the returned candidate had a subsisting contract with the Panchayat
Union and the State Government and was, therefore, disqualified to be chosen for
the seat under Section 9-A of the Representation of the People Act, 1951, it would
only be of an academic interest.
54. In Shankar Pendaam vs. Smt. Jyoti Dhurve (Judgment delivered on
18.7.2014 by the High Court of Madhya Pradesh, Jabalpur Bench in the Election
Petition No.45 of 2009).
55. In this case, the election petition was filed by the petitioner therein under
Section 80 read with Section 81 of the Representation of the People Act, 1951 for
declaring the election of the respondent to be void.
56. This case is an identical one to that of the present case on hand. During the
course of arguments of the learned Senior Counsel, who was appearing on behalf
of the respondent before the Jabalpur Bench of Madhya Pradesh High Court had
submitted that the said election petition had become infructuous because the term
of the respondent had come to an end by efflux of time on 16th May, 2014 and
thereafter, general elections had also taken place in May, 2014 and the respondent
had already been elected from the same constituency of Loksabha. Thus, the grounds
taken in this election petition have been rendered of academic importance and the
academic questions should not ordinarily be decided by the Courts.
57. It was further submitted that this election petition had not been filed by the
petitioner on the ground of corrupt practice. Therefore, it was urged that the election
petition might be dismissed as infructuous.
58. The learned Senior Counsel had made reference to the following decisions
of the Apex Court: – a. Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi (1987
(Supp) SCC 93). b. Sushma Swaraj vs. Raj Kumar Patel in SLP (Civil) No.2951
of 2014 decided on 5.5.2014.
59. Having taken into consideration of the related facts and circumstances, the
learned Single Judge of the Jabalpur Bench of Madhya Pradesh High Court has
observed as under:-
“Considering the fact that the tenure of the respondent has already come to
an end by the efflux of time and the matter has been rendered of academic importance.
In view of the aforesaid discussion and in the light of the aforesaid decision of Apex
Court in Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi (supra) and Sushma
Swaraj vs. Rajkumar Patel (supra), I am of the considered view that nothing further
survives in this matter. This petition has become infructuous, same is hereby dismissed
as having been rendered infructuous.”
60. In a case between Chandra Mohan Shukla and Anil Dhirubhai Ambani
and 11 others in the Election Petition No.6 of 2004 decided by the Lucknow Bench
of High Court of Judicature at Allahabad, Mr. Anupam Mehrotra, learned counsel
for the respondents had raised a preliminary objection with submission that keeping
in view of the fact that election petition challenging the same election has been
dismissed by this Court and also since the term of elected representation of the
Rajya Sabha has expired, petition should be dismissed as infructuous.
22
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
61. It was also submitted that the court should not adjudicate an academic
issue and in any case the petitioner shall not be entitled for any benefit.
62. The learned Single Judge of the said High Court, has observed as under:-
“22. Keeping in view the submission made by learned counsel for the
parties it appears that whenever in a petition, which includes election petition, the
relief claimed with regard to main issue involved becomes redundant or infructuous
then for other relief courts may exercise its discretion and may not proceed further
in case right of the plaintiff or dependent satisfied or no grievance remained pending
against defendant or respondents because of the change of circumstances. Court
may use its discretion to drop the proceeding and may not proceed further in
a matter even if, some relief of academic nature stand survive... ” (emphasis
supplied)
21. The decisions cited supra lay down the following principles:
(i) An election petition without the material facts relating to a corrupt practice
is not an election petition at all;
(ii) An election petition can be and must be dismissed under the Civil
Procedure Code, if the mandatory requirements enjoyed by Section 83 of RP Act,
1951 to incorporate the material facts and particulars relating to alleged corrupt
practice in the election petition are not complied with;
(iii) If the allegations are vague and general and the particulars of corrupt
practice are not stated in the pleadings, the trial of the election petition cannot
proceed for want of cause of action. The emphasis of law is to avoid a fishing and
roving inquiry;
(iv) Once the charge of corrupt practice fails, rest of the appeal would be
rendered infructuous because fresh elections have already taken place and the old
Assembly is no longer in existence.
22. A cursory reading of the decision in Krishnamoorthy v. Sivakumar and
Others [Order dated 15.06.2009 in CRP(NPD)No.3076 of 2009] would reveal
that in the said case, challenge was made to the election proceedings, wherein the
petitioner therein was elected as President of Local Panchayat, on the ground that
in the declaration annexed to the Nomination Form, the petitioner therein did not
disclose the details of all 8 charge sheets, but mentioned only one crime number,
out of which all 8 charge sheets arose and the learned Judge having held that the
declaration of the petitioner therein actually fell short of the requirement, answered in
negative against the petitioner therein for the contention with regard to suppression
of information. However, the case on hand is entirely different, which pertains to
election in respect of Member of Legislative Assembly and here, the applicant has
given brief particulars of the cases for appropriate crime numbers, brief description
of charges, stages of cases pending before the Investigating Officer, stages of those
cases before the Courts concerned. Therefore, the decision in Krishnamoorthy’s
case (cited supra), relied on by the respondent/election petitioner, would not apply
to the facts of the present case.
23
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
CONCLUSION
23. Now coming back to the present case on hand, as discussed in the earlier
paragraphs, the respondent/election petitioner has not specifically alleged corrupt
practice under Section 123 of the RP Act, 1951 in the election petition. The respondent/
election petitioner is unable to make out any allegation of corrupt practice directly in
the election petition and as a Law Graduate and a Voter of the Tiruchendur Assembly
Constituency, he has made a faint attempt indirectly by taking the plea of undue
influence by way of non-disclosure of material information. Therefore, this Court has
come to the conclusion that there is no specific allegation of corrupt practice in the
election petition. As held by the Hon’ble Apex Court in Azhar Hussain case (cited
supra), an election petition without the material fact relating to a corrupt practice
is not an election petition at all. Hence, question No.1 is answered in favour of
the applicant.
QUESTION No.2
24. Once the charge of corrupt practice fails, the election petition would
be rendered infructuous, because fresh elections have already taken place and the
old Assembly is no longer is in existence [P.H. Pandian case (cited supra)]. In
the case on hand, the old Assembly is no longer is in existence, as the term of
office has come to an end and fresh elections were held for the 16th Tamil Nadu
Legislative Assembly on 06.04.2021, in which the applicant has been elected as a
Member of Legislative Assembly, representing No.215, Tiruchendur Constituency. In
the light of the decision in P.H.Pandian case, the Election Petition is liable to be
dismissed as infructuous. Hence, question No.2 is answered accordingly.
25. In the result, O.A.Nos.560, 561 and 562 of 2022 stand allowed.
Consequently, Election Petition No.17 of 2016 stands dismissed as infructuous.
No costs.
WITNESS, THE HON’BLE MR.JUSTICE MUNISHWAR NATH BHANDARI,
CHIEF JUSTICE, HIGH COURT AT MADRAS, AFORESAID THIS THE 24TH DAY
OF JUNE 2022.
Sd./-
ASSISTANT REGISTRAR.
Original Side – II
//Certified to be true copy//
Dated at Madras this the 4th day July of 2022.
COURT OFFICER (O.S.)
From 25th Day of September 2008 the Registry is issuing certified copies of the
Orders/Judgments/Decrees in this format.
24
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
PK 30/06/2022
Election Petition No. 17 of 2016
and
OA.Nos. 560, 561 & 562 of 2021,
110 & 111 of 2022
ORDER DATED: 24/06/2022
T H E
H O N ’ B L E
M R .
J U S T I C E
D.KRISHNAKUMAR
FOR APPROVAL: 01/07/2022
APPROVED ON :01/07/2022
Copy to:-
1. The Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi.
2. The Returning Officer and Revenue
Divisional Officer,
O/o. Revenue Divisional Officer,
Tiruchendur Legislative Assembly
Constituency,
Tiruchendur – 628 216.
(By Order)
Malay Mallick,
Principal Secretary,
Election Commission of India.
Secretariat,
SATYABRATA SAHOO,
Chennai-600 009,
Chief Electoral Officer and
1st August, 2022.
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