Judgement of the High Court of Madras in Election Petition No. 04 of 2019


	[Regd. No. TN/CCN/467/2012-14. © GOVERNMENT OF TAMIL NADU [R. Dis. No. 197/2009. 2023 [Price : Rs. 24.00 Paise. TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY PUBLISHED BY AUTHORITY

No. 322] CHENNAI, FRIDAY, AUGUST 25, 2023

Aavani 8, Sobakiruthu, Thiruvalluvar Aandu–2054

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. 04 of 2019

No. SRO G-28/2023.

The following Notiﬁ cation of the Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi-110 001, dated 03rd August, 2023 [12 Sarvana 1945 (Saka)] is published:-

No. 82/TN-HP/ (EP 04 of 2019) /2023/SS-I: - In pursuance of section 106 (a) 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 06.07.2023 in Election Petition No. 04 of 2019.

IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON 30.06.2023

DELIVERED ON 06.07.2023

CORAM

THE HON'BLE MR. JUSTICE S.S.SUNDAR

ELP. No. 4/2019

DTP—V-4 Ex.(322)—1

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P.Milany ... Petitioner

Versus

1.S.Arumugam

2.E.V.K.S.Elangovan

3.P.Raveendranath Kumar

4.P.Allikodi

5.J.Shahul Hammed

6.T.Chinna Sathiyamoorthy

7.S.Radhakrishnan

8.G.Kamaraj

9. S.Alex Pandian

10.M.Annakili

11.K.Ravichandran

12.Eswaran

13.M.Guna Singh

14.P.Kumaragurubaran

15.J.Kesavaraja

16.P.Silambarasan

17.A.Sivamuniyandi

18.J.Senthilkumar

19.Thanga Tamilselvan

20.G.Parthipan

21.P.Prakash

22.C.Manimurugan

23.K. Ramachandran

24.S.Ramamurthi

25.V.Rajasekaran

26.S.Rajarishigurudev

27.P.Rajkumar 3

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28.S.P.Velmurugan

29.A.Vaiyathurai

30.K.Jayamani

31.Mrs.Pallavi Baldev, IAS

Returning Oﬃ cer cum District Electoral Oﬃ cer of Theni District, O/o.District Collectorate Theni District.

32. The Chief Electoral Oﬃ cer

State of Tamil Nadu, Secretariat Chennai 600 009.

33. Election Commission of India represented by the Chief Election Commissioner Nirvachan Sadan, Ashoka Road New Delhi 110 001. …Respondents

**RR31 to 33 are struck of from the array

of respondents in ELP.No.4/2019 as per

order of this Court dated 18.09.2019 in

OA.Nos.838, 840 & 841/2019 in ELP.No.4/2019

Prayer-Election Petition ﬁ led under sections 81, 100[1][a], 100[1][b], 100[1][d][i], 100[1] [d][ii], 100[1][d][iii], 100[1][d][iv], 33, 36, 77, 123[ 1 ][A][b], 123[1][B][b] and Rules 88, 89 of Conduct of Election Rules, 1961 and Article 324 of the Constitution of India read with Rule 2 of the Madras High Court Election Petition, 1967, to declare the election of the 3rd respondent as returned candidate on 23.05.2019 from No.33, Theni Parliamentary Constituency as null and void and award the cost of this petition.

For Petitioner : Mr.V.Arun

For R3 : Mr.A.K.Sriram, Senior Counsel assisted by Mr.G.Prakash Kumar

ORDER

(l)This election petition is ﬁ led to declare the election of the 3rd respondent/ Returned Candidate on 23.05.2019 from No.33, Theni Parliamentary Constituency as null and void and to pass such further or other orders as this Court deems ﬁ t and appropriate.

(2)The Election Commission of India declared Lok Sabha General Election on 10.03.2019. As per the Schedule of Election, the ﬁ rst day for issuing nomination was on 19.03.2019 and the last date for receiving nomination was on 26.03.2019. The date 4 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

for scrutiny of nominations was ﬁ xed on 27.03.2019 and the last date for withdrawal of nominations was on 29.03.2019 before 5.00 p.m. 18.04.2019 was the date of polling and 23.05.2019 was the date of counting and for declaration of election results.

(3) This Election Petition is ﬁ led on 08.07.2019 within time. The petitioner has ﬁ led this petition as an elector challenging the election of 3rd respondent as representative of Theni Parliamentary Constituency on grounds referring to Section 81, 100[1][a], 100[1][b], 100[1][d][i], 100[1][d][ii], 100[1][d][iii], 100[1][d][iv], 33, 36, 77, 123[1][A][b], 123[1][B][b] of the Representation of People Act, 1951 read with Rules 88, 89 of Conduct of Election Rules, 1961. The election petition is ﬁ led mainly on the ground of suppression of assets and liabilities in Form-26 of election aﬃ davit ﬁ led under Rule 4A of Conduct of Election Rules, 1961, improper acceptance of nomination by the Returning Oﬃ cer and corrupt practices by the associates of the 3rd respondent with the consent of third respondent.

(4) It is not in dispute that the then ruling party in the State ﬁ elded 3rd respondent as a candidate in All India Anna Dravida Munnetra Kazhagam [AIADMK] Party under 'two leaves' symbol. It is also admitted that the 3rd respondent is the son of the then Deputy Chief Minister of the State Mr.O.Panneerselvam. It is pertinent to mention that one Mr.E.V.K.S.Elangovan, who contested as a candidate of Indian National Congress in 'hands' symbol is the 2nd respondent herein and many other candidates who contested the election, did not participate in the Election Petition. Though the 19th respondent ﬁ led a counter supporting the petition and gave evidence as PW2, he did not participate in the proceedings by engaging an Advocate. The other respondents, except the 3rd respondent, have not contested the election petition.

(5) The case of the petitioner in the Election Petition can be brieﬂ y summarised

as follows:-

(a) The petitioner veriﬁ ed his Parliamentary Constituency candidate's aﬃ davits submitted by the candidates on the website of the Election Commission to know about the candidates. On veriﬁ cation, he came to know that the 3rd respondent/ Returned Candidate has suppressed his assets in the form of shares and its ﬁ nancial values in M/s.Vani Fabrics Private Limited in which the 3rd respondent was a Director holding 16.67% of shares. The Balance Sheet approved in the Annual General Meeting of M/s.Vani Fabrics Private Limited to Ministry of Corporate Aﬃ ars, Government of India, revealed the holdings of shares by the 3rd respondent as Director and the 3rd respondent has deliberately suppressed his position as a shareholder and Director of M/s.Vani Fabrics Private Limited in the election aﬃ davit.

(b) After acceptance of nomination, the 3rd respondent and his men as a team work, induced voters of entire Theni Parliamentary Constituency by freely distributing various articles like 'two leaves' printed sarees, dhotis printed with party's ﬂ ag color, sweet boxes, liquor, cash on hand and promise on milk etc. The petitioner saw a ﬂ ock of poor village women wearing identical green colour sarees imprinted with 'two leaves' symbol. The petitioner on enquiry, was informed that the 3rd respondent's brother was distributing sarees with Rs. 1000/- to each of them to cast vote for them as advance gift at Baskar Kalyana Mandapam, Thendral Nagar. The petitioner went to the place and identiﬁ ed the brother of 3rd respondent by name Mr.Pradeep Kumar, who was distributing a sum of Rs. 1000/- to each of the women, 5

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on their promise to cast votes for 'two leaves' symbol. Even the petitioner could not contact the concerned to lodge a complaint. Later when the place was raided, about 500 sweet boxes alone were seized and raiding oﬃ cials could only disperse the crowd by the rear side gate of the Kalyana Mandapam. The 3rd respondent, his agents, his father were freely and openly distributing money to the voters of Theni Parliamentary Constituency at various places simultaneously. The inducement of the voters cannot be stopped by respondents 31 to 33 or the special squad. Therefore, it appeared that the inducement was going on with the aid and support of the persons responsible for holding free and fair election.

(c) The petitioner saw a video of money distribution of 3rd respondent's close aid in social media. One Mrs.Saveetha Arunprasad, Ex-Chairman of Melachockanathapuram [of AIADMK Party], at Part 113 of Bodi Assembly Constituency, distributed Rs. 1000/- to each voter as per the electoral roll. The electors by name Lakshmi, Mariyamman, Santhosh and Raja of Part No. 113 in Sl.Nos.551, 720, 673 and 718 were given Rs.4000/- by the said Saveetha. Again, she paid a sum of Rs. 1000/- to one voter by name Subramaniam in Part No. 113 Sl.No.258 of Bodi Assembly Segment at about 21.00 hours on 14.04.2019 and asked the said voter to vote for 'two leaves' symbol, the symbol in which the Returned Candidate contested the election. Mrs.Saveetha Arunprasad is a close conﬁ dante of the Returned Candidate and his father. She was accompanying with the 3rd respondent and his father during election campaign. With the consent of the 3rd respondent, she was distributing money to voters to vote for 'two leaves'. Hence, the 3rd respondent/Returned Candidate committed election oﬀence under Sections 123[1][A] and [B] and also under sections 100[1][b], 100[1] [d][i], 100[1][d][iii] and 100[1][d][iv] of the Representation of People Act, 1951.

(d) The petitioner tried to lodge a complaint in this regard, but he could not lodge a complaint because no Flying Squad, Police, Control Room phone numbers were working as respondents 31 to 33 were taking partisan attitude. The petitioner came to know that an FIR in Crime No.215/2019 against the said Saveetha was registered on 15.04.2019; but no arrest or further action was taken by the 33rd respondent.

(e) Though drastic steps were taken when similar incident was reported in Vellore Parliamentary Constituency and this Court upheld the 33rd respondent's order of countermand of Vellore Parliamentary Constituency, no eﬀective steps were taken and no arrests were made in Theni Parliamentary Constituency.

(f) While election oﬃ cials received several complaints of stocking of huge money at the election oﬃ ce of the 3rd respondent at Andipatti, the 31st respondent just informed a lower level Flying Squad Team headed by one Nataraja Rathinam, to conduct search in the said place and the raid was unsuccessful except seizure of a sum of Rs.1.48 Crores from the said place and reported the ﬁ ring that was inevitable because of poor strength of oﬃ cials who were deputed to the place of occurrence.

(g) The election petitioner though made a few more allegations in the election petition, this Court is not inclined to elaborate further because the petitioner focused his attention only on limited grounds on the basis of the incidents above referred to any by stating that the oﬃ cial respondents miserably failed to conduct free and fair election.

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(6) The 3rd respondent/Returned Candidate ﬁ led a counter aﬃ davit generally denying all the allegations parawise. He also raised a preliminary objection as to the maintainability of the Election Petition by the petitioner raising a doubt as to his identity as an eligible elector. Referring to the fact that the petitioner is a functionary of a rival party, it is stated that the present petition is a frivolous one ﬁ led with ulterior motive. With regard to suppression of assets in the form of shares in the Company M/s.Vani Fabrics Private Limited, the 3rd respondent speciﬁ cally denied the same. Though the 3rd respondent admitted that he had previously held shares in the said company, it is stated that the shares held by him had been transferred by him on 18.03.2019. He further stated in his counter that necessary documents in that regard are available with the company and the transfer of shares are supported by records. It is also contended that during scrutiny of nomination, same objection was raised by some other persons and it was duly replied by the 3rd respondent. It is stated further that the nomination of 3rd respondent was accepted after considering the objections. The 3rd respondent speciﬁ cally denied the averments regarding corrupt practices. Stating that the petitioner's general allegations involving the 3rd respondent and his brother were not made with particulars and details, it is contended by the 3rd respondent that mere allegations without satisfying the requirements of statute, cannot be considered. The speciﬁ c stand taken by the 3rd respondent is that he never consented or indulged in any corrupt practices alleged. It is stated in the counter that the petitioner is trying to build castles in air by making such farcical allegations with no material facts or particulars.

(7) As regards the distribution of money to voters, the 3rd respondent stated that the petitioner has not given the details as to how the money was distributed and when, where and by whom the alleged distribution took place. While denying the allegations involving Mrs.Saveetha Arunprasad, based on video on social media, it is responded in the counter aﬃ davit ﬁ led by 3rd respondent that he has nothing to do with the incident. He questioned the authenticity of the Whatsapp video and put the petitioner to strict proof of the allegations that Mrs.Saveetha Arunprasad had committed such illegal acts with the consent of the 3rd respondent. He stated that mere allegation that Mrs.Saveetha Arunprasad had association with his father or the 3rd respondent does not mean that she indulged in such corrupt practices with their consent. He repeatedly stated that no corrupt practices were committed either by the 3rd respondent or by his supporters or party men. The 3rd respondent went to the extent of denying knowledge of the incident or the video clipping. Finally, the 3rd respondent stated that the police have commenced investigation pursuant to the registration of the FIR and that the petitioner has made bald allegations which do not satisfy the requirements of Sections 83 of the Representation of People Act, 1951 [hereinafter called as 'the RP Act'].

(8) After the ﬁ ling of counter aﬃ davit by 3rd respondent, the election petitioner ﬁ led a reply reiterating the allegations already made in the election petition. With reference to suppression of assets, it is contended that the 3rd respondent has not only suppressed his shareholdings in M/s.Vani Fabrics Private Limited, but also the liability of Rs.10 Crores borrowed by M/s.Vijayanth Developers Private Limited in which the 3rd respondent is one of the Directors and holding 33.33% shares. The petitioner has come forward with an additional information about the suppression of the liability of a company in which the 3rd respondent is one of the Directors. In paragraph 7

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No. 13 of the reply aﬃ davit, the petitioner raised a doubt as to the bona ﬁ des of the alleged transfer of shares by the 3rd respondent pointing out the discrepancies in the dates. While the transfer of shares according to the 3rd respondent was on 18.03.2019, the petitioner pointed out that as per the company records, the transfer was on 17.03.2019. The petitioner still maintained that transfer of shares is done by manipulation of records to cover up the suppression of assets. It is important to note that the petitioner in the alternative, further pointed out that the 3rd respondent has not disclosed the consideration he had received for transfer of 15000 shares. Referring to the fact that the Annual Report for 2017-18 of the Company shows that the value of shares held by the 3rd respondent was Rs.27, 00,000/- it is contended that the 3rd respondent has suppressed the consideration he had received for transfer of shares and therefore, it is contended that the suppression is admitted by the 3rd respondent himself. Further, it is stated that the 3rd respondent was receiving salary of Rs.6 lakhs per annum as the Director of M/s.Vani Fabrics Private Limited and that the income he derived from the said Company by way of salary was not disclosed in the aﬃ davit in Form-26. In the reply aﬃ davit, the petitioner from paras 6 to 15 raised several allegations regarding non-disclosure of assets and liabilities in Form 26 and about improper acceptance of nomination. Since the 3rd respondent in his counter, has stated that the objections raised by 3rd parties had been considered and rejected by Returning Oﬃ cer, it is contended by the petitioner that the decision of Returning Oﬃ cer holding enquiry in a summary manner is not ﬁ nal and that the 3rd respondent should prove that he has not suppressed any asset or liability as it is the fundamental right of petitioner under Article 19[1][a] of the Constitution of India to know about the candidates contesting the elections. The petitioner has made a speciﬁ c allegation that the 3rd respondent has suppressed his assets of other Company and its liability to the tune of Rs.10 Crores. Petitioner also put the 3rd respondent to strict proof that he has not suppressed any assets nor liabilities in his election aﬃ davit. The petitioner reiterated that the 3rd respondent's nomination suﬀered from defects and hence, it is a case of improper acceptance of 3rd respondent's nomination by the Returning Oﬃ cer.

(9) The 19th respondent has also ﬁ led a counter aﬃ davit. Referring to the written objection, he had raised before the Returning Oﬃ cer, the 19th respondent came up with few allegations regarding suppression of the salary, the 3rd respondent was receiving from M/s.Vani Fabrics Private Limited as a Director. Making similar allegation regarding suppression of the 3rd respondent's shareholdings [16.7%] at M/s. Vani Fabrics Private Limited and the book value of the same, the 19th respondent also contended that the 3rd respondent has given a false declaration.

(10) The 19lh respondent added further in his counter that the 3rd respondent availed a loan of Rs.10 Crores against his property for election purpose and it was also suppressed under the column 'Liabilities' in his election aﬃ davit. Referring to a sum of Rs.32,52,450/- as his asset by referring to the said sum as the money which is due from the company namely, M/s.Vijayanth Developers Private Limited to the 3rd respondent, the 19th respondent contended that this is a false information. However, he failed to give any reason for describing the disclosure of a sum of Rs.32,52,450/- as a false declaration. Referring to the fact that the company, M/s. Vijayanth Developers Private Limited, is a loss making company which is indebted to several people, the 19th respondent also alleged that the declaration in Form-26 8 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

that the 3rd respondent owned shares to the value of Rs.33,340/- in M/s.Vijayanth Developers Private Limited, is a false information.

(11) The 19th respondent in his counter aﬃ davit, referred to the borrowal of a sum of Rs.10 Crores from City Union Bank, Mandaveli Branch, Chennai, as per the loan application dated 09.01.2019 and the sanction of loan. Referring to the charge over company on 18.02.2019, the 19th respondent alleged that the 3rd respondent has suppressed the liability by mortgaging the property of the 3rd respondent. The 19lh respondent also alleged that the 3rd respondent has undervalued the immovable properties owned by him and mortgaged with the Bank. Referring to the fact that the value of his immovable properties is given as Rs.1,19,46,293/- [31.37acres] in Column No.7B of immovable assets, the 19dl respondent contended that the Returned Candidate/3rd respondent has mortgaged his property, by valuing the property mortgaged at Rs.5.69 Crores [for an extent of 29.99 acres] as on 21.09.2017. It is contended by the 19th respondent that the 3rd respondent's landed property which was valued for a sum of Rs.5.69 Crores as on 21.09.2017, has been suppressed and the property mortgaged with an additional extent has been shown in the election aﬃ davit as a property worth Rs.1,19,46,923/-. Therefore, referring to the under valuation of property and non-disclosure of the loan availed by mortgaging the property of the 3rd respondent, the 19th respondent made allegation of suppression against the 3rd respondent.

(12) The 19th respondent also made a few more allegations and we are not concerned about every other allegations in view of focus of parties on issues only with reference to certain allegations.

(13) The 3rd respondent ﬁ led a reply aﬃ davit responding to the counter of 19th respondent. In the reply aﬃ davit to the 19th respondent's counter, the 3rd respondent stated that the transaction between 3rd respondent and M/s.Vijayanth Developers Private Limited is entirely diﬀerent and the loan obtained was not for the 3rd respondent, but for the development of the Company. The 3rd respondent also submitted that he has disclosed the mortgage of property with City Union Bank, Mandaveli Branch, vide Mortgage Deed dated 03.08.2018 and that the same had been disclosed in the aﬃ davit in Form-26. Stating that the shares, loans, mortgages as on the date of ﬁ ling of nomination had been suﬃ ciently disclosed, the 3rd respondent made several allegations against the 19th respondent attributing motive for supporting the cause of the election petitioner in this proceeding. Without prejudice to his contentions, the 3rd respondent submitted that he has nothing to do with the valuation done by the Bank for the purpose of lending money to the company.

(14) One of the independent candidate, who also contested in the election, namely, the 26th respondent, also ﬁ led a counter aﬃ davit [ﬁ led as written statement]. He also came with a few allegations against the 3rd respondent by contending that the 3rd respondent has ﬁ led a false aﬃ davit of declaration suppressing assets and liabilities with substantial variation. A reply aﬃ davit was also ﬁ led by the 3rd respondent in response to the counter aﬃ davit of the 26th respondent speciﬁ cally denying every averments made in the counter aﬃ davit of the 26th respondent.

(15) 26th respondent also made certain allegations with reference to the suppression of share holdings of 3rd respondent in M/s.Vani Fabrics Private Limited 9

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and about the mortgage of his property in connection with the loan advanced to M/s. Vijayanth Developers Private limited. Though the averments in the reply aﬃ davit are in tune with what the 3rd respondent has stated in his reply to the counter aﬃ davit ﬁ led by 19th respondent, the 3rd respondent in paragraph No. 19 has stated that the shares in M/s.Vani Fabrics Private Limited were transferred to his own brother and there is no question of receiving any consideration as it was internally adjusted between himself and his brother. Surprisingly, the 3rd respondent admitted that he had also paid capital gains for the said transaction. Speciﬁ c averments found in paragraph No. 19 of the reply aﬃ davit of 3rd respondent to the counter of 26th respondent reads as follows:-

"19.... With respect to share held in Vani Fabrics, it has already

been made clear in the counter that the same had been transferred

on 18.03.2019 and objections raised regarding the same were duly

answered during nomination. The shares were transferred to my own

brother and there is no question of me receiving any consideration

as it was internally adjusted between my brother and I and in fact, I

have also paid capital gains for the said transaction. Therefore, it is

utterly false to state that I have conveniently suppressed all crucial

facts to hide the poor voters eyes and cheated them by false aﬃ davit

and aﬀected the results of election, per contra, I have not made any

suppression on my account as I have made complete disclosure on

the state of my assets and liabilities as on the date of nomination

vide aﬃ davit in Form 26 dates 02.03.2019. My aﬃ davit in Form 26

is complete in all respects therefore, the allegation that I have not

signed the veriﬁ cation clause and signed formally is ﬂ ippant and

untenable".

(16)This Court, originally, on 18.02.2020 framed the following issues:-

1. Whether the aﬃ davit ﬁ led under Rule 4[A] of the Conduct of

Election Rules, 1961, has been validly made?

2. Whether the ingredients required to establish 'corrupt practices'

under section 123 of the Representation of the People Act, 1951,

has been established??

3. Whether the election petitioner is entitled to the declaration of

the Election of the 3rd respondent as returned candidate, as null

and void? And

4. To what other relief is the election petitioner is entitled to?

(17) Again on 22.01.2021, following additional issues were framed:-

1. Whether the returned candidate has suppressed any assets or liabilities

or given false information in the aﬃ davit ﬁ led under Rule 4A of the Conduct of

Election Rules, 1961?

2. Whether the returned candidate or his associates committed any

corrupt practice during the course of election?

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3. Whether the Returning Oﬃ cer conducted the election of Theni

Parliamentary Constituency, in an impartial manner in accordance with the

provisions of the Conduct of Election Rules, 1961 and during the scrutiny

of nomination, under section 36 of the Representation of the People

Act, 1951?

(18) After framing all issues, the trial commenced on 04.04.2022 with the examination of election petitioner as PW1. The election petitioner examined himself as PW1. The 19th respondent was examined as 2nd witness. One Mr.Joseph Jackson K.G., Registrar of Companies, Tamil Nadu, Andaman and Nicobar Islalnds, Chennai, was examined as Court Witness [CW1] who was summoned to produce certain documents by issuing subpoena. CW2 is the Registrar of Companies, Coimbatore. The Returning Oﬃ cer, namely, the then District Collector of Theni District, was examined as CW3. One Mr.P.Selvaraj, Sub Inspector of Police, who is now in Anti Land Grabbing Special Cell, Dindigul, was examined as CW4. Thereafter, on the petition ﬁ led by the election petitioner, the case was reopened and PW1 was recalled. Thereafter, the 3rd respondent/Returned Candidate was examined as RW1. Cross examination of RW1 by the learned counsel for the petitioner was done from 17.03.2023.

(19) The election petitioner marked 22 documents and three documents Exs.R1 to R3 were marked during cross examination of PWl/petitioner herein. Through Court Witnesses, CW1 to CW4, 25 documents were marked as Exs.Cl to C25. Except examining the 3rd respondent as RW1, and Exs.R1 to R3, no other document was marked on the side of the 3rd respondent/Returned Candidate. After cross examination of RW1 on 17.03.2023, both the learned counsels appearing for parties reported that they have no further evidence to record and requested time for arguments.

(20) After hearing the arguments of the learned counsels on either side at length on 11.04.2023, 17.04.2023, 18.04.2023, 26.04.2023 and on 27.04.2023, this Court reserved the case "for orders" on 27.04.2023 with a permission to the counsels on both sides to ﬁ le their written submissions on or before 03.06.2023. On seeing the written submissions, this Court listed the petition 'for clariﬁ cation' on 05.06.2023. The matter was adjourned to 08.06.2023 at the request of learned senior counsel for 3rd respondent. On 08.06.2023, the case was adjourned at the request of the learned counsel for the 3rd respondent to ﬁ le a petition to reopen the case to mark some documents by recalling RW1.

(21) On. 19.06.2023, the applications in OA.Nos.537 to 539/2023 were ﬁ led and this Court allowed all the applications with liberty to the election petitioner to raise his objections regarding the admissibility or relevance of the documents sought to be marked on 28.06.2023. RW1 was reexamined and further cross examined. Documents Exs.R4 to RI6 were marked on the side of 3rd respondent. Again the petition was adjourned to 30.06.2023 for further arguments.

(22) After hearing further arguments at length on 30.06.2023, referring to

additional documents, this Court reserved orders.

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Preliminary objection:

(23) Even though no issue was framed as to the locus standi of the election petitioner, a preliminary objection was raised by the learned senior counsel appearing for the 3rd respondent that the petitioner has not proved his locus standi to maintain the election petition. The contention of the learned senior counsel for the 3rd respondent is that under Section 81 of the Representation of People Act, 1951, an election petition can be ﬁ led by any candidate at such election or any elector within 45 days from the date of election. Under Explanation to Section 81, an elector means a person who is entitled to vote at the election to which the election petition relates. It is the submission of the learned senior counsel appearing for the 3rd respondent that the petitioner has ﬁ led the extract of Voters' Helpline as Ex.P1 and the Certiﬁ cate under Section 65B of the Evidence Act as Ex.P2. Stating that Ex.P2 is not relating to Ex.P1 and PW1 admits that Ex.P1 is not the Voter ID, the learned Senior counsel submitted that there is no explanation as to why the petitioner has not produced his Voter ID or the electoral roll, and hence the petitioner is not competent to ﬁ le the election petition.

(24) The petitioner has made speciﬁ c averments about his locus standi as an elector of Theni Parliamentary Constituency during 2019 Lok Sabha elections. During cross-examination, PW1 speciﬁ cally stated that he has ﬁ led the election petition as a voter of Theni Parliamentary Constituency. He has further stated that Ex.P1 is the extract of electoral roll of Theni Parliamentary Constituency where his name is also shown. Though an objection was raised as to the marking of Ex.P1, he has spoken to the fact that he downloaded Ex.P1 containing one page from the website of Election Commission of Government of India on 05.07.2019 from his desktop computer. Though he refers to the document as Voter ID, from Ex.P1, it is seen that it is downloaded from the website maintained by the Election Commission of India to facilitate voters and serve public by providing "Voter Helpline" and the petitioner's name is conﬁ rmed as a voter in the Assembly Constituency of Bodinaickanoor and Theni Parliamentary Constituency. The identity of the petitioner as seen in Ex.P.1 is not in issue. Except suggesting that the petitioner has not ﬁ led any document to substantiate his statement that he is a voter, no other document or suggestion is put to him about the petitioner's status as a voter of Theni Parliamentary Constituency. PW1 has deposed to the eﬀect that Ex.P1 was downloaded 20 days before the election, i.e., on 28.03.2019, which was when the voter helpline was updated and it is accepted as a valid document to prove that the petitioner is a valid elector. He further stated that if he brings the document Ex.P1 to the Polling Booth along with the Photo ID, he can cast vote. When the document is not disputed merely because the document-Ex.P2 wrongly describes the document-Ex.P1, this Court is unable to countenance the arguments of the learned Senior Counsel appearing for the 3rd respondent, especially when the evidence of PW1 is not controverted by any independent evidence either oral or documentary. Therefore, this Court holds that the petitioner is an eligible elector of Theni Parliamentary Constituency and that he has locus standi to maintain the election petition.

ISSUE No.[1] & ADDITIONAL ISSUES [1] AND 13]:-

(25) Learned counsel appearing for the petitioner submitted that the petitioner has pleaded suppression in the election aﬃ davit in Form 26 by referring to the 12 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

shareholding and Directorship of 3rd respondent in M/s.Vani Fabrics Private Limited and the consideration the 3rd respondent had received by transfer of shares even if transfer is proved. Learned counsel relied upon the evidence of 19th respondent and the counter aﬃ davits ﬁ led by respondents 19 and 26. He submitted that the petitioner as well as the 3rd respondent has gone to trial with the full understanding of the case pleaded by petitioner and respondents 19 and 26 and hence, suppressions alleged by respondents 19 and 26 should also be gone into and that every documents and evidence that are available in the course of trial in favour of petitioner is relevant. In such circumstances, he submitted that the rejoinder of the petitioner is also part of the pleadings and therefore, Issue No. [1] And Additional Issues No.[1] and [3] are to be considered simultaneously by considering the entire evidence available on record in this proceeding not only conﬁ ned to pleadings of petitioner but also in relation to the pleadings raised by respondents 19 and 26.

(26) Learned counsel for the petitioner also relied upon the judgment of the Hon'ble Supreme Court in the case of Bhagwati Prasad Vs. Shri Chandramaul reported in AIR 1966 SC 735, wherein the Hon'ble Supreme Court has held as follows:-

"9. There can be no doubt that if a party asks for a relief on a

clear and speciﬁ c ground, and in the issues or at the trial, no other

ground is covered either directly or by necessary implication, it would

not be open to the said party to attempt to sustain the same claim on

a ground which is entirely new. The same principle was laid down by

this Court in Sheodhar Rai v. Suraj Prasad Singh [1950 SCC 788: AIR

(1954) SC 758]. In that case, it was held that where the defendant

in his written statement sets up a title to the disputed lands as the

nearest reversioner, the Court cannot, on his failure to prove the said

case, permit him to make out a new case which is not only not made in

the written statement, but which is wholly inconsistent with the title set

up by the defendant in the written statement. The new plea on which

the defendant sought to rely in that case was that he was holding the

suit property under a shikmi settlement from the nearest reversioner. It

would be noticed that this new plea was in fact not made in the written

statement, had not been included in any issue and, therefore, no

evidence was or could have been led about it. In such a case clearly

a party cannot be permitted to justify its claim on a ground which is

entirely new and which is inconsistent with the ground made by it in

its pleadings.

10. But in considering the application of this doctrine to the facts of

the present case, it is necessary to bear in mind the other principle that

considerations of form cannot over-ride the legitimate considerations

of substance. If a plea is not speciﬁ cally made and yet it is covered by

an issue by implication, and the parties knew that the said plea was

involved in the trial, then the mere fact that the plea was not expressly

taken in the pleadings would not necessarily disentitle a party from

relying upon it if it is satisfactorily proved by evidence. The general rule

no doubt is that the relief should be founded on pleadings made by the

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

parties. But where the substantial matters relating to the title of both

parties to the suit are touched, though indirectly or even obscurely, in

the issues, and evidence has been led about them, then the argument

that a particular matter was not expressly taken in the pleadings would

be purely formal and technical and cannot succeed in every case. What

the Court has to consider in dealing with such an objection is: did the

parties know that the matter in question was involved in the trial, and did

they lead evidence about it? If it appears that the parties did not know

that the matter was in issue at the trial and one of them has had no

opportunity to lead evidence in respect of it that undoubtedly would be

a diﬀerent matter. To allow one party to rely upon a matter in respect of

which the other party did not lead evidence and has had no opportunity

to lead evidence, would introduce considerations of prejudice, and in

doing justice to one party, the Court cannot do injustice to another.

15. It is hardly necessary to emphasise that in a matter of this kind,

it is undesirable and inexpedient to lay down any general rule. The

importance of the pleadings cannot, of course, be ignored, because it

is the pleadings that lead to the framing of issues and a trial in every

civil case has inevitably to be conﬁ ned to the issues framed in the suit.

The whole object of framing the issues would be defeated if parties are

allowed to travel beyond them and claim or oppose reliefs on grounds

not made in the pleadings and not covered by the issues. But cases

may occur in which though a particular plea is not speciﬁ cally included

in the issues, parties might know that in substance, the said plea is

being tried and might lead evidence about it. It is only in such a case

where the Court is satisﬁ ed that the ground on which reliance is placed

by one or the other of the parties, was in substance, at issue between

them and that both of them have had opportunity to lead evidence about

it at the trial that the formal requirement of pleadings can be relaxed. In

the present case, having regard to all the facts, we are unable to hold

that the High Court erred in conﬁ rming the decree for ejectment passed

by the trial court on the ground that the defendant was in possession

of the suit premises as a licensee. In this case, the High Court was

obviously impressed by the thought that once the defendant was shown

to be in possession of the suit premises as a licensee, it would be futile

to require the plaintiﬀ to ﬁ le another suit against the defendant for

ejectment on that basis. We are not prepared to hold that in adopting

this approach in the circumstances of this case, the High Court can be

said to have gone wrong in law. "

(27) However, the learned Senior counsel appearing for the 3rd respondent contended that the allegations which are made by respondents 19 and 26 are not the basis for challenging the election of 3rd respondent and that the evidence adduced by the 19th respondent or anyone relating to the factual allegations/issues raised by respondents 19 and 26 are not admissible in evidence. Referring to the well settled principle of law that no amount of evidence can be looked into without pleading, the learned counsel submitted that the pleading or evidence relating to the allegations made by the petitioner either in the election petition or in the reply aﬃ davit alone 14 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

can be looked into and no amount of evidence is admissible even if it supports the case of the petitioner to prove suppression if the evidence is not relatable to the allegations of suppression pleaded by petitioner. The Hon'ble Supreme Court and this Court have repeatedly reiterated the principle set by the Privy Council in 1930, that no amount of evidence can be looked into without a speciﬁ c plea. The election petition can be maintained only by a candidate or an elector. The election petition is ﬁ led impleading several other contestants. The scope of enquiry cannot be extended beyond pleading in the election petition. Even the judgment cited by the learned counsel for the petitioner reiterates that a party cannot be permitted to justify his claim on a ground which is entirely new and which is inconsistent with the ground raised in his pleadings. Therefore, this Court need not consider any other allegations regarding suppression made in the counter aﬃ davits ﬁ led by respondents 19 and 26.

(28) Before considering whether the suppression of an asset is relevant and fatal to the Returned Candidate in an election petition, this Court is bound to consider the legal principles settled by Hon'ble Supreme Court in several binding precedents in the following sequence.

(29) In the case of Union of India Vs. Association for Democratic Reforms and another reported in 2002 [5] SCC 294, the Hon'ble Supreme Court considered the issues [1] whether before casting votes, voters have a right to know relevant particulars of their candidates? and [2] whether the High Court has jurisdiction to issue directions in a writ ﬁ led under Article 226 of the Constitution of India? The Hon'ble Supreme Court stressed the importance of disclosure of assets and liabilities of the candidate, his/her spouse and dependent children, overdues to any Public Financial Institutions and any Government dues and charges against properties. While considering the issues, the Hon'ble Supreme Court took note of the position that democracy is a part of the basic structure of our Constitution and Rule of Law and free and fair elections are basic features of democracy. Several principles based on fundamental rights under our constitution were considered by the Hon'ble Supreme Court to hold that every citizen have a right to know about the candidate contesting the elections. The following directions were issued by the Hon'ble Supreme Court to the Election Commission of India in paragraph No.48 of the said judgment which reads thus:-

48. The Election Commission is directed to call for information

on aﬃ davit by issuing necessary order in exercise of its power under

Article 324 of the Constitution of India from each candidate seeking

election to Parliament or a State Legislature as a necessary part of

his nomination paper, furnishing therein, information on the following

aspects in relation to his/her candidature:

(1) Whether the candidate is convicted/acquitted/ discharged

of any criminal oﬀence in the past — if any, whether he is

punished with imprisonment or ﬁ ne.

(2) Prior to six months of ﬁ ling of nomination, whether the

candidate is accused in any pending case, of any oﬀence

punishable with imprisonment for two years or more, and

in which charge is framed or cognizance is taken by the

court of law. If so, the details thereof.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

(3) The assets (immovable, movable, bank balance, etc.) of a

candidate and of his/her spouse and that of dependants.

(4) Liabilities, if any, particularly whether there are any

overdues of any public ﬁ nancial institution or government

dues.

(5) The educational qualiﬁ cations of the candidate.

(30) After the above judgment of the Hon'ble Supreme Court in the Association of Democratic Reforms' case [cited supra], the Central Government promulgated the Representation of People [Amendment] Ordinance, 2002 and later the Ordinance was replaced by Representation of the People [3rd Amendment] Act, 2002 [Act 72 of 2002] inserting Sections 33-A and 33-B to the existing provisions. The amendment was brought in just to nullify the directions issued by the Hon'ble Supreme Court in the case of Union of India Vs. Association for Democratic Reforms and another reported in 2002 [5] SCC 294. Contrary to the directions, Section 33-A though require the candidate to furnish information about his involvement in any criminal oﬀence and to ﬁ le an aﬃ davit, the particulars of assets, liabilities, and educational qualiﬁ cation, etc. are not made mandatory. Under Section 33-B, no candidate can be held liable to disclose or furnish any such information which is not required to be disclosed under the Act or Rules irrespective of any judgment or order of any Court.

(31) A Three Member Bench of Hon'ble Supreme Court in the case of People's Union for Civil Liberties [PUCL] and Another Vs. Union of India and Another reported in 2003 [4] SCC 399, had unanimously struck down Section 33-B of the amended Act on the ground that legislation cannot overturn or review the judgment. The Hon'ble Supreme Court, in the said case, held that the judgment rendered by the Hon'ble Supreme Court in the case of Union of India Vs. Association for Democratic Reforms and another reported in 2002 [5] SCC 294, has attained ﬁ nality and there is no question of interpreting constitutional provision which calls for reference to Constitution Bench under Article 145[3].

(32) The view expressed by majority of the Larger Bench of the Hon'ble Supreme Court in People's Union for Civil Liberties's case [cited supra] reported in 2003 [4] SCC 399, in the form of conclusions, found in 123[1], [2], [4], [5], [6], [7] and [9] which are extracted below:-

"V. Conclusions

123. Finally, the summary of my conclusions:

(1) Securing information on the basic details concerning the

candidates contesting for elections to Parliament or the State

Legislature promotes freedom of expression and therefore the right

to information forms an integral part of Article 19(1)(a). This right to

information is, however, qualitatively diﬀerent from the right to get

information about public aﬀairs or the right to receive information

through the press and electronic media, though, to a certain extent,

there may be overlapping.

16 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

(2) The right to vote at the elections to the House of the People or

Legislative Assembly is a constitutional right but not merely a statutory

right; freedom of voting as distinct from right to vote is a facet of the

fundamental right enshrined in Article I9(1)(a). The casting of vote in

favour of one or the other candidate marks the accomplishment of

freedom of expression of the voter.

(3) ……….

(4) The Court has to take a holistic view and adopt a balanced

approach in examining the legislation providing for right to information

and laying down the parameters of that right.

(5) Section 33-B inserted by the Representation of the People (Third

Amendment) Act, 2002 does not pass the test of constitutionality,

ﬁ rstly, for the reason that it imposes a blanket ban on dissemination

of information other than that spelt out in the enactment irrespective

of the need of the hour and the future exigencies and expedients

and secondly, for the reason that the ban operates despite the fact

that the disclosure of information now provided for is deﬁ cient and

inadequate.

(6) The right to information provided for by Parliament under Section

33-A in regard to the pending criminal cases and past involvement

in such cases is reasonably adequate to safeguard the right to

information vested in the voter/citizen. However, there is no good

reason for excluding the pending cases in which cognizance has

been taken by the Court from the ambit of disclosure.

(7) The provision made in Section 75-A regarding declaration

of assets and liabilities of the elected candidates to the Speaker

or the Chairman of the House has failed to eﬀectuate the right to

information and the freedom of expression of the voters/citizens.

Having accepted the need to insist on disclosure of assets and

liabilities of the elected candidate together with those of the spouse

or dependent children, Parliament ought to have made a provision

for furnishing this information at the time of ﬁ ling the nomination.

Failure to do so has resulted in the violation of guarantee under.

Article 19(1) (a).

(8) ………

(9) The Election Commission has to issue revised instructions to

ensure implementation of Section 33-A subject to what is laid down

in this judgment regarding the cases in which cognizance has been

taken. The Election Commission's orders related to disclosure of

assets and liabilities will still hold good and continue to be operative.

However, Direction 4 of para 14 insofar as veriﬁ cation of assets and

liabilities by means of summary enquiry and rejection of nomination

paper on the ground of furnishing wrong information or suppressing

material information should not be enforced.''

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

(33) The extent of jurisdiction of a Returning Oﬃ cer to determine the question as to whether a nomination papers ﬁ led by an applicant to enable him to contest the election in terms of provisions of RP Act, 1951, on the premise that the names of the proposers were forged, is considered by the Hon'ble Supreme Court in the case of Uttamrao Shivdas Jankar Vs. Ranjitsinh Vijaysinh Mohite Patil reported in 2009 [13] SCC 131, and the Hon'ble Supreme Court has discussed the issue in the light of several precedents and highlighted the following aspects:-

"40. While exercising his quasi-judicial power, in terms of

the provisions of the Act, it was incumbent upon the Returning

Oﬃ cer to follow the instructions contained in the Handbook. It

provides for:

(i) an opportunity to be given to the candidate to

rebut the objections by placing suﬃ cient materials on record,

and

(ii) a presumption of validity of such nomination

paper.

Indisputably, the said instructions are binding being statutory

in nature. (See Rakesh Kumar v. Sunil Kumar [(1999) 2 SCC

489].) When there exists a presumption in favour of a party, it

is for the other party to adduce evidence.

44. The presumption of correctness of the nomination

paper being statutory in nature, as the intention of Parliament

as also the Election Commission was that even if somebody

had ﬁ led an improper nomination, but for which he can be

given beneﬁ t of doubt being a possible subject-matter of an

election petition where the question would be gone into in

details, it was for the respondent herein to prove that the

nomination paper prima facie did not contain the signatures

of the proposers and, thus, were liable to be rejected.

45. We must, however, notice another aspect of the

matter: a quasi-judicial authority while deciding an issue of

fact may not insist upon a conclusive proof. While doing so,

he has to form a prima facie view. Indisputably, however,

in terms of sub-section (5) of Section 36 in the Handbook

for Returning Oﬃ cers, if any objection is raised then while

holding the summary inquiry in the matter of taking a decision

on the objection as to whether the same is valid or not, he is

not only required to record his brief decision for the same but

further in case of doubt the beneﬁ t must go to the candidate

and the nomination paper should be held to be valid although

his view may be prima facie a plausible view or otherwise

bona ﬁ de.

18 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

47. Evidence by way of an aﬃ davit is one of the modes

of proving a question of fact both under the Code of Civil

Procedure as also under the Code of Criminal Procedure

besides other special statutes recognising the same. The

Returning Oﬃ cer, thus, while exercising his quasi-judicial

function could have appreciated the evidence brought on

record by the parties by way of aﬃ davits. A wrong question

posed, leads to a wrong answer, which is a misdirection in

law. (See Cholan Roadways Ltd. [(2005) 3 SCC 241 : 2005

SCC (L&S) 395] , SCCp. 253, para 34.)."

(34) Again, a Larger Bench of Hon'ble Supreme Court, [a Three Member Bench] in the case in Resurgence India Vs. Election Commission of India and Another reported in 2014 [14] SCC 189, issued further directions to the Central Government to eﬀectuate the meaningful judgments of the Hon'ble Supreme Court in UOI Vs. Association for Democratic Reforms reported in 2002 [5] SCC 294 and in People's Union for Civil Liberties [PUCL] and Another Vs. Union of India and Another reported in 2003 [4] SCC 399, in the following lines:-

29. What emerges from the above discussion can be summarised in the

form of the following directions:

29.1. The voter has the elementary right to know full

particulars of a candidate who is to represent him in Parliament/

Assemblies and such right to get information is universally

recognised. Thus, it is held that right to know about the candidate

is a natural right ﬂ owing from the concept of democracy and is an

integral part of Article 19(1) (a) of the Constitution.

29.2. The ultimate purpose of ﬁ ling of aﬃ davit along with

the nomination paper is to eﬀectuate the fundamental right of

the citizens under Article 19(1)(a) of the Constitution of India.

The citizens are supposed to have the necessary information at

the time of ﬁ ling of nomination paper and for that purpose, the

Returning Oﬃ cer can very well compel a candidate to furnish the

relevant information.

29.3. Filing of aﬃ davit with blank particulars will render the

aﬃ davit nugatory.

29.4. It is the duty of the Returning Oﬃ cer to check

whether the information required is fully furnished at the time of

ﬁ ling of aﬃ davit with the nomination paper since such information

is very vital for giving eﬀect to the "right to know" of the citizens.

If a candidate fails to ﬁ ll the blanks even after the reminder by the

Returning Oﬃ cer, the nomination paper is ﬁ t to be rejected. We do

comprehend that the power of the Returning Oﬃ cer to reject the

nomination paper must be exercised very sparingly but the bar

should not be laid so high that the justice itself is prejudiced.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

29.5. We clarify to the extent that para 73 of People's

Union for Civil Liberties case [People's Union for Civil Liberties

vs. Union of India, (2003) 4 SCC 399] will not come in the way

of the Returning Oﬃ cer to reject the nomination paper when the

aﬃ davit is ﬁ led with blank particulars.

29.6. The candidate must take the minimum eﬀort to

explicitly remark as ''NIL" or "Not Applicable" or "Not known" in the

columns and not to leave the particulars blank.

29.7. Filing of aﬃ davit with blanks will be directly hit by

Section 125-A(i) of the RP Act. However, as the nomination

paper itself is rejected by the Returning Oﬃ cer, we ﬁ nd no reason

why the candidate must be again penalised for the same act by

prosecuting him/her."

(35) Again, the Hon'ble Supreme Court, in the case of Kisan Shankar Kathore Vs Arun Dattatray Sawant reported in 2014 [14] SC 162, has considered the scope of the rules relating to suppression and the relevant pleading or proof that are mandatory when suppression is alleged and proved. The Hon'ble Supreme Court, after considering several precedents, has held as follows:-

"31. On Issue 7, ﬁ nding of the High Court is that nomination was

improperly accepted by the Returning Oﬃ cer by giving the following

reasons:

"130. That takes me to the next issue as to whether the

petitioner proves that the respondent's nomination form is

improperly accepted by the Returning Oﬃ cer? Insofar as this

issue is concerned, the respondent may be right to the extent

that the Returning Oﬃ cer cannot be faulted for having accepted

the nomination form of the respondent. That was required to be

accepted in spite of the objection, in view of the decision of the

Apex Court in People's Union for Civil Liberties [People's Union

for Civil Liberties vs. Union of India, (2003) 4 SCC 399] and the

order issued by the Election Commission on the basis of the law

declared in the said judgment. Inasmuch as, it was not open to

the Returning Oﬃ cer to enquire into contentious issues raised in

this petition in the summary enquiry at the stage of scrutiny of

nomination forms. Those matters necessarily have to be addressed

only after it is disclosed in an enquiry upon taking evidence on

the relevant facts at the trial of the election petition. That does

not mean that the nomination of the respondent was proper and

lawful. As the respondent's nomination paper suﬀered from the

defects already referred to in the earlier part of this decision, it is

plainly a case of improper acceptance of his nomination paper by

the Returning Oﬃ cer, covered by the rigours of Section 100(1 )(d)

(i) of the Act. Issue 7 will have to be answered accordingly. "

32. Issue 8 pertains to the question as to whether the election

result was materially aﬀected because of non-disclosure of the

20 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

aforesaid information. The High Court took note of the provisions of

Sections 100(1)(d)(i) and (iv) and discussed the same. Thereafter,

some judgments cited by the appellant were distinguished and

deciding this issue against the appellant, the High Court concluded

as under:

"137. In my opinion, it is not necessary to elaborate on

this matter beyond a point, except to observe that when it is

a case of improper acceptance of nomination on account of

invalid aﬃ davit or no aﬃ davit ﬁ led therewith, which aﬃ davit is

necessarily an integral part of the nomination form; and when

that challenge concerns the returned candidate and if upheld, it

is not necessary for the petitioner to further plead or prove that

the result of the returned candidate has been materially aﬀected

by such improper acceptance.

138. The avowed purpose of ﬁ ling the aﬃ davit is to make

truthful disclosure of all the relevant matters regarding assets

(movable and immovable) and liabilities as well as criminal

actions (registered, pending or in respect of which cognizance

has been taken by the court of competent jurisdiction or in

relation to conviction in respect of speciﬁ ed oﬀences). Those are

matters which are fundamental to the accomplishment of free

and fair election. It is the fundamental right of the voters to be

informed about all matters in relation to such details for electing

candidate of their choice. Filing of complete information and to

make truthful disclosure in respect of such matters is the duty of

the candidate who oﬀers himself or who is nominated for election

to represent the voters from that constituency. As the candidate

has to disclose this information on aﬃ davit, the solemnity of the

aﬃ davit cannot be allowed to be ridiculed by the candidates

by oﬀering incomplete information or suppressing material

information, resulting in disinformation and misinformation to the

voters. The sanctity of disclosure to be made by the candidate

ﬂ ows from the constitutional obligation".

33. As pointed out above, there is no dispute on facts that

information in respect of the aforesaid four aspects was not disclosed

by the appellant in the aﬃ davit ﬁ led by him along with the nomination

form. The defence and/or justiﬁ cation given for non-disclosing

these particulars is rightly rebuﬀed by the High Court. However,

the submission of Mr B. Adinarayana Rao, learned Senior Counsel

appearing for the appellant, was that having regard to the judgment of

this Court in G.M. Siddeshwar vs. Prasanna Kumar [G.M. Siddeshwar

vs. Prasanna Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] the

Court was required to examine as to whether the information given

in the aﬃ davits was substantial compliance with those particulars

regarding government dues, assets and liabilities, etc. He submitted

that the information amounted to substantial compliance. For this

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

purpose, his attempt was to demonstrate that insofar as electricity

dues of MSEB are concerned, there was a genuine dispute about the

non-payment; as far as ownership of Bungalow No. 866 in the name

of his wife is concerned, it was added to the value of the properties

belonged to the appellant; municipal taxes in respect of this bungalow

were again the subject-matter of dispute; the value of the vehicle

owned by his wife was also disclosed against his own name; and as

far as properties owned by the partnership ﬁ rm are concerned, the

appellant was simply a partner from which he had resigned, even

when this event occurred after the ﬁ ling of the nomination form.

37. We have already discussed in detail each item of

non-disclosure as well as defence of the appellant pertaining thereto.

For the reasons recorded in detail at that stage by the High Court

and stated above, with which we agree, we are of the opinion that its

ﬁ nding about non-disclosure of the information qua all the aspects is

without blemish. There is a speciﬁ c format in which the information is

to be given, which was not adhered to.

38. With these remarks we proceed to deal with the ﬁ rst aspect.

Insofar as non-disclosure of the electricity dues is concerned, in the

given facts of the case, we are of the opinion that it may not be a serious

lapse. No doubt, the dues were outstanding, at the same time, there

was a bona ﬁ de dispute about the outstanding dues in respect of the ﬁ rst

electricity meter. It would have been better on the part of the appellant to

give the information along with a note about the dispute, as suggested

by the High Court, we still feel that when the appellant nurtured belief

in a bona ﬁ de manner that because of the said dispute he is not to give

the information about the outstanding amount, as it had not become

"payable", this should not be treated as a material lapse. Likewise, as

far as the second electricity meter is concerned, it was in the premises

which was rented out to the tenants and the dues were payable by

the tenants in the ﬁ rst instance. Again, in such circumstances, one can

bona ﬁ de believe that the tenants would pay the outstanding amount.

No doubt, if the tenants do not pay the amount the liability would have

been that of the owner i.e. the appellant. However, at the time of ﬁ ling

the nomination, the appellant could not presume that the tenants would

not pay the amount and, therefore, it had become his liability. Same

is the position with regard to non-payment of a sum of Rs.1783 as

outstanding municipal dues, where there was a genuine dispute as to

revaluation and reassessment for the purpose of assessing the taxes

was yet to be undertaken. Having said so, we may clarify that it would

depend on the facts and circumstances of each case as to whether

such a non-disclosure would amount to material lapse or not. We are,

thus, clarifying that our aforesaid observation in the facts of the present

case should not be treated as having general application.

39. Even if it is so, in respect of the aforesaid aspects, on other

non-disclosures, the case of the appellant has to fail. We ﬁ nd a clear case

22 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

of non-disclosure of Bungalow No. 866 in the name of the appellant's

wife, which is a substantial lapse. So is the case about the non-disclosure

of vehicle in the name of the appellant's wife. Likewise, non-disclosure of

the appellant's interest/share in the partnership ﬁ rm is a very serious and

major lapse. On all these aspects, we ﬁ nd that the defence/explanation

furnished by the appellant does not inspire any conﬁ dence. It is simply

an afterthought attempt to wriggle out of the material lapse on the part

of the appellant in not disclosing the required information, which was

substantial. We, therefore, are of the view that in the aﬃ davits given by

the appellant along with the nomination form, material information about

the assets was not disclosed and, therefore, it is not possible to accept

the argument of the appellant that information contained in the aﬃ davits

be treated as suﬃ cient/substantial compliance.

40. We have already reproduced above the relevant portions of

judgments in Assn, for Democratic Reforms [Union of India vs. Assn, for

Democratic Reforms, (2002) 5 SCC 294] and People's Union for Civil

Liberties [People's Union for Civil Liberties vs. Union of India, (2003)

4 SCC 399] and the guidelines issued by the Election Commission

pursuant thereto. A conjoint and combined reading thereof clearly

establishes that the main reason for issuing directions by this Court

and guidelines by the Election Commission pursuant thereto is that the

citizens have fundamental right under Article 19(1)(a) of the Constitution

of India to know about the candidates contesting the elections and this

is the primary reason that casts a solemn obligation on these candidates

to furnish information regarding the criminal antecedents, educational

qualiﬁ cations and assets held by the candidate, his spouse and dependent

children. It is on that basis that not only the Election Commission has

issued guidelines, but also prepared formats in which the aﬃ davits are

to be ﬁ led. As a fortiori, it follows that if the required information as per

the said format in respect of the assets of the candidate, his wife and

dependent children is not given, it would amount to suppression/non-

disclosure.

41. It was argued that the acceptance of nomination is as per

Section 33 of the Act, which contains requirement for a valid nomination.

Further Section 36(2) deals with the rejection of nomination on grounds

speciﬁ ed therein. It was the submission of the learned Senior Counsel

that at the time of scrutiny of the nomination under Section 36, nomination

could be rejected only if any of the grounds stipulated in sub-section (2)

are satisﬁ ed and there cannot be any "deemed" ground, which is not

covered by Section 36(2) of the Act. Therefore, the Returning Oﬃ cer had

rightly accepted the nomination form as none of the grounds speciﬁ ed

in sub-section (2) of Section 36 were attracted. He further submitted

that Sections 8-A, 9, 9-A, 10 and 10-A provide disqualiﬁ cations for the

Members of Parliament and the State Legislature. As per the counsel,

from the scheme of the Act it can be seen that at the time of scrutiny

of nomination, all that the Returning Oﬃ cer is required to examine is

as to whether the candidate suﬀers from any of the disqualiﬁ cations

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

mentioned in Sections 8 to 10-A of the Act and as to whether the

nomination is in the form prescribed by Section 33 and accompanied by

the documents mentioned in sub-sections (2) to (7) of Section 33 and

whether it is accompanied by an aﬃ davit prescribed by Rule 4-A and

the deposit required by Section 34 of the Act. Apart from the aforesaid,

the Returning Oﬃ cer is not empowered to reject the nomination on any

other ground. He argued that the right of the Returning Oﬃ cer to conduct

a summary inquiry into the correctness or otherwise of the contents of

the aﬃ davit ﬁ led along with the nomination was expressly taken away as

can be seen from the judgment of this Court in People's Union for Civil

Liberties [People's Union for Civil Liberties vs. Union of India, (2003) 4

SCC 399]. Having noted that the Returning Oﬃ cer has no power to reject

a nomination where false information is furnished or material information

is suppressed, the Election Commission of India and the Union of

India have requested this Court to treat the same as equal to a blank

aﬃ davit, as noted in Resurgence India [Resurgence India vs. Election

Commission of India, (2014) 14 SCC 189].

42. When the information is given by a candidate in the aﬃ davit

ﬁ led along with the nomination paper and objections are raised thereto

questioning the correctness of the information or alleging that there is

non-disclosure of certain important information, it may not be possible

for the Returning Oﬃ cer at that time to conduct a detailed examination.

Summary enquiry may not suﬃ ce. The present case is itself an example

which loudly demonstrates this. At the same time, it would not be

possible for the Returning Oﬃ cer to reject the nomination for want of

veriﬁ cation about the allegations made by the objector. In such a case,

when ultimately it is proved that it was a case of non-disclosure and

either the aﬃ davit was false or it did not contain complete information

leading to suppression, it can be held at that stage that the nomination

was improperly accepted. Ms Meenakshi Arora, learned Senior Counsel

appearing for the Election Commission, rightly argued that such an

enquiry can be only at a later stage and the appropriate stage would

be in an election petition as in the instant case, when the election is

challenged. The grounds stated in Section 36(2) are those which can be

examined there and then and on that basis the Returning Oﬃ cer would

be in a position to reject the nomination. Likewise, where the blanks

are left in an aﬃ davit, nomination can be rejected there and then. In

other cases where detailed enquiry is needed, it would depend upon the

outcome thereof, in an election petition, as to whether the nomination

was properly accepted or it was a case of improper acceptance. Once

it is found that it was a case of improper acceptance, as there was

misinformation or suppression of material information, one can state

that question of rejection in such a case was only deferred to a later

date. When the Court gives such a ﬁ nding, which would have resulted

in rejection, the eﬀect would be same, namely, such a candidate was

not entitled to contest and the election is void. Otherwise, it would be

an anomalous situation that even when criminal proceedings under

Section 125-A of the Act can be initiated and the selected candidate is

24 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

criminally prosecuted and convicted, but the result of his election cannot

be questioned. This cannot be countenanced."

(36) The Hon'ble Supreme Court, in the case of Sri Meirembant Prithiviraj @ Prithviraj Singh Vs. Pukhrem Sharatchandra Singh reported in 2017 [2] SCC 487, reiterating the principles laid down in the above cited judgments, has elaborately considered the issue whether it is necessary to plead and prove that the result was materially aﬀected when the nomination of the returned candidate was found to have been improperly accepted. The entire discussions in the judgment with reference to relevant provisions of Representation of People Act, 1951 and precedents as found in the judgment are extracted below:

"9. Chapter I of Part V of the Act deals with the nomination

of candidates. Section 33 of the Act provides for presentation

of nomination paper and requirements of a valid nomination. A

nomination paper complete in the prescribed form, signed by

a candidate and by an elector of the constituency as proposer

should be delivered to the Returning Oﬃ cer within the prescribed

period. Section 33-A which was inserted by Act 72 of 2002

with eﬀect from 24-8-2002 contemplates that a candidate has

to provide additional information, apart from the information

provided by him under Section 33(1). The information mentioned

in Section 33-A relates to the criminal antecedents of a candidate.

Section 36 deals with scrutiny of nomination. Section 36(4) which

is for adjudication of this case is as follows:

"36. Scrutiny of nomination.—(1)-(3) ***

(4) The Returning Oﬃ cer shall not reject any nomination paper on

the ground of any defect which is not of a substantial character."

10. Rule 4-A of the Conduct of Election Rules, 1961 which was

inserted with eﬀect from 3-9-2002 reads as under:

"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 First Class or a Notary in Form 26."

11. A candidate has to ﬁ le an aﬃ davit along with his nomination

paper as prescribed in Form 26 in which one of the columns

pertains to the educational qualiﬁ cation. Grounds for declaring the

election to be void are provided in Section 100 of the Act which is

as under:

"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

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

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, insofar as it concerns a

returned candidate, has been materially aﬀected—

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

(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) * * *

(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. "

12. Section 125-A prescribes penalty for ﬁ ling false aﬃ davit which

is reproduced as under:

"12 5-A. Penalty for ﬁling false aﬃdavit, etc.—

A candidate who himself or through his proposer,

with intent to be elected in an election—

26 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

(i) fails to furnish information relating to subsection

(1) of Section 33-A; or

(ii) gives false information which he knows or has

reason to believe to be false; or

(iii) conceals any information, in his nomination

paper delivered under sub-section (1) of Section 33 or

in his aﬃ davit which is required to be delivered under

sub-section (2) of Section 33-A, as the case may

he, shall, notwithstanding anything contained in any

other law for the time being in force, be punishable

with imprisonment for a term which may extend to six

months, or with ﬁ ne, or with both."

13. Sir Winston Churchill underlining the importance of a voter in a democratic

form of government stated as follows:

"At the bottom of all tributes paid to democracy is the

little man, walking into a little booth, with a little pencil,

making a little cross on a little bit of paper — no amount of

rhetoric or voluminous discussion can possibly diminish

the overwhelming importance of the point."

14. In Union of India v. Assn, for Democratic Reforms [Union of India vs.

Assn, for Democratic Reforms, (2002) 5 SCC 294] this Court held that the voter

has a fundamental right to information about the contesting candidates. The voter

has the choice to decide whether he should cast a vote in favour of a person

involved in a criminal case. He also has a right to decide whether holding of an

educational qualiﬁ cation or holding of property is relevant for electing a person

to be his representative. Pursuant to the judgment in Union of India vs. Assn, for

Democratic Reforms [Union of India vs. Assn, for Democratic Reforms, (2002)

5 SCC 294] Section 33-A was inserted in the Representation of the People Act

providing for right to additional information by an Ordinance. The challenge to the

said Ordinance was dealt with by this Court in People's Union for Civil Liberties v.

Union of India [People's Union for Civil Liberties v. Union of India, (2003) 4 SCC

399] in which it was held as follows: (SCC pp. 452-53, para 78)

"78. What emerges from the above discussion can be

summarised thus:

(D) The contention that as there is no speciﬁ c fundamental

right conferred on a voter by any statutory provision to know the

antecedents of a candidate, the directions given by this Court

are against the statutory provisions is, on the face of it, without

any substance. In an election petition challenging the validity

of an election of a particular candidate, the statutory provisions

would govern respective rights of the parties. However, voters'

fundamental right to know the antecedents of a candidate is

independent of statutory rights under the election law. A voter is

ﬁ rst citizen of this country and apart from statutory rights, he is

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

having fundamental rights conferred by the Constitution. Members

of a democratic society should be suﬃ ciently informed so that

they may cast their votes intelligently in favour of persons who are

to govern them. Right to vote would be meaningless unless the

citizens are well informed about the antecedents of a candidate.

There can be little doubt that exposure to public gaze and scrutiny

is one of the surest means to cleanse our democratic governing

system and to have competent legislatures."

15. It is relevant to mention that the Election Commission of India

issued a press note on 28-6-2002 in which there was a reference to the

judgment of this Court in Union of India v. Assn, for Democratic Reforms

[Union of India v. Assn, for Democratic Reforms, (2002) 5 SCC 294] in

which it was held that information on ﬁ ve aspects has to be provided to the

voter. One of the ﬁ ve aspects pertains to the educational qualiﬁ cation of the

candidates. An Order was issued by the Election Commission of India on

28- 6-2002 directing that full and complete information relating to the ﬁ ve aspects

which were mentioned in the judgment has to be furnished. Providing incomplete

information or suppression of material information on any of the ﬁ ve aspects was

to be treated as a defect of substantial character by the Returning Oﬃ cers.

16. In Resurgence India v. Election Commission of India [Resurgence India

vs. Election Commission of India, (2014) 14 SCC 189] this Court held that (SCC

p. 200, para 21) every candidate is obligated to ﬁ le an aﬃ davit with relevant

information with regard to their criminal antecedents, assets and liabilities and

educational qualiﬁ cation. The fundamental right under Article 19(1)(a) of the voter

was reiterated in the said judgment and it was held that ﬁ ling of aﬃ davit with blank

particulars would render the aﬃ davit as nugatory. In Kisan Shankar Kathore v.

Arun Dattatray Saw ant [Kisan Shankar Kathore v. Arun Dattatray Sawant, (2014)

14 SCC 162] this Court considered the question as to whether it was incumbent

upon the appellant to have disclosed the information sought for in the nomination

form and whether the non-disclosure thereof renders the nomination invalid and

void. It was held that non-furnishing of the required information would amount to

suppression/non-disclosure.

17. It is clear from the law laid down by this Court as stated above that every

voter has a fundamental right to know about the educational qualiﬁ cation of a

candidate. It is also clear from the provisions of the Act, the Rules and Form 26

that there is a duty cast on the candidates to give correct information about their

educational qualiﬁ cations. It is not in dispute that the appellant did not study MBA

in the Mysore University. It is the case of the appellant that reference to MBA from

Mysore University was a clerical error. It was contended by the appellant that he

always thought of doing MBA by correspondence course from Mysore University.

But, actually he did not do the course. The question which has to be decided is

whether the declaration given by him in Form 26 would amount to a defect of

substantial nature warranting rejection of his nomination.

18. Section 36(4) of the Act mandates that the Returning Oﬃ cer shall not

reject a nomination paper on the ground of any defect which is not of a substantial

character. The declaration made by the appellant in Form 26, ﬁ led in 2012 is

28 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

not a clerical error as contended by him. The appellant contested election to

the same constituency in 2008 and in the aﬃ davit ﬁ led by him in Form 26 he

declared that he passed MBA from Mysore University in 2004. In the aﬃ davit

ﬁ led by him in this election petition by way of examination-in-chief the appellant

stated that his nomination paper and the enclosed aﬃ davit were prepared and

ﬁ led by his counsel Chakpam Bimolchandra Singh on the instructions of his agent

Ph. Shamu Singh. He also stated that his counsel ﬁ lled the prescribed aﬃ davit

in his own handwriting. The appellant also stated that he signed the aﬃ davit

without reading the contents and he came to know about the error only when the

respondent raised his objection to the nomination. The appellant further stated

that he was working in Projeon, Infosys Company and IBM till 2007 and because

of his job many local friends and elders thought that he was an MBA degree-

holder. His election agent also thought that he was holding an MBA degree due to

which he instructed Advocate Chakpam Bimolchandra Singh to ﬁ ll up Column 9

of the aﬃ davit by stating that the appellant is an MBA degree-holder. In his cross-

examination, the appellant gave evasive replies to the questions relating to his

educational qualiﬁ cation. He stated that he does not remember whether he had

undergone MBA from Mysore University and he does not remember whether he

possesses MBA degree. Chakpam Bimolchandra Singh who was examined as

DW 3 in his cross-examination denied having ﬁ lled up the entries in Form 26. He

stated that he entered the educational qualiﬁ cations of the appellant on the basis

of instructions given by the election agent Shamu Singh. He also stated that he

was not present before the Oath Commissioner when the appellant signed the

aﬃ davit.

23. It is clear from the above judgment in Durai Muthuswami [Durai

Muthuswami vs. N. Nachiappan, (1973) 2 SCC 45] that there is a diﬀerence

between the improper acceptance of a nomination of a returned candidate and

the improper acceptance of nomination of any other candidate. There is also a

diﬀerence between cases where there are only two candidates in the fray and

a situation where there are more than two candidates contesting the election. If

the nomination of a candidate other than the returned candidate is found to have

been improperly accepted, it is essential that the election petitioner has to plead

and prove that the votes polled in favour of such candidate would have been

polled in his favour. On the other hand, if the improper acceptance of nomination

is of the returned candidate, there is no necessity of proof that the _ election has

been materially aﬀected as the returned candidate would not have been able

to contest the election if his nomination was not accepted. It is not necessary

for the respondent to prove that result of the election insofar as it concerns the

returned candidate has been materially aﬀected by the improper acceptance of

his nomination as there were only two candidates contesting the election and if the

appellant's nomination is declared to have been improperly accepted, his election

would have to be set aside without any further enquiry and the only candidate left

in the fray is entitled to be declared elected.

24. The judgment of this Court in Durai Muthuswami [Durai Muthuswami vs.

N. Nachiappan, (1973) 2 SCC 45] was referred to in Jagjit Singh vs. Dharam Pal

Singh [Jagjit Singh vs. Dharam Pal Singh, 1995 Supp (1) SCC 422] , in which it

was held as follows: (Jagjit Singh case [Jagjit Singh vs. Dharam Pal Singh, 1995

Supp (1) SCC 422] SCCp. 429, para 21)

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

"21. The trial Judge has held that since there is no

averment in the petition that the result of the election was

materially aﬀected by improper rejection or acceptance of

votes, it is devoid of cause of action. We are unable to agree

that the absence of such an averment in the facts of this case

is fatal. As pointed out by this Court, there may be cases where

the obvious conclusion to be drawn from the circumstances

is that the result of the election has been materially aﬀected

and that Section 100(1)(d) of the Act is not intended to provide

a convenient technical plea in a case where there can be no

dispute at all about the result of the election being materially

aﬀected by the alleged inﬁ rmity. (See: Durai Muthuswami vs.

N. Nachiappan [Durai Muthuswami vs. N. Nachiappan, (1973)

2 SCC 45].) In the present case, the appellant in the election

petition has stated that he has lost by a margin of 80 votes

only. From the various averments in the election petition it was

evident that the number of valid votes of the appellant which are

alleged to have been improperly rejected is much more than 80.

From the averments contained in the election petition it is thus

obvious if the appellant succeeds in establishing his case as set

out in the election petition the result of this election, insofar as it

concerns the returned candidate, would be materially aﬀected. "

25. It was held by this Court in Vashist Narain Sharma vs. Dev Chandra [Vashist

Narain Sharma vs. Dev Chandra, (1955) 1 SCR 509 : AIR 1954 SC 513] as under:

(AIR pp. 515-16, para 9)

"9. The learned counsel for the respondents concedes that the

burden of proving that the improper acceptance of a nomination

has materially aﬀected the result of the election lies upon the

petitioner but he argues that the question can arise in one of

three ways:

(1) where the candidate whose nomination was improperly

accepted had secured less votes than the diﬀerence

between the returned candidate and the candidate securing

the next highest number of votes,

(2) where the person referred to above secured more votes, and

(3) where the person whose nomination has been improperly

accepted is the returned candidate himself

It is agreed that in the ﬁrst case the result of the election is not materially

aﬀected because if all the wasted votes are added to the votes of the candidate

securing the highest votes, it will make no diﬀerence to the result and the

returned candidate will retain the seat. In the other two cases it is contended

that the result is materially aﬀected. So far as the third case is concerned it may

be readily conceded that such would be the conclusion. But we are not prepared

to hold that the mere fact that the wasted votes are greater than the margin

of votes between the returned candidate and the candidate securing the next

30 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

highest number of votes must lead to the necessary inference that the result of

the election has been materially aﬀected. That is a matter which has to be proved

and the onus of proving it lies upon the petitioner. It will not do merely to say

that all or a majority of the wasted votes might have gone to the next highest

candidate. The casting of votes at an election depends upon a variety of factors

and it is not possible for anyone to predicate how many or which proportion of

the votes will go to one or the other of the candidates. While it must he recognised

that the petitioner in such a case is confronted with a diﬃcult situation, it is not

possible to relieve him of the duty imposed upon him by Section 100(1)(c) and

hold without evidence that the duty has been discharged. Should the petitioner

fail to adduce satisfactory evidence to enable the Court to ﬁnd in his favour on

this point, the inevitable result would be that the Tribunal would not interfere in

his favour and would allow the election to stand."

(emphasis supplied)

This Court in Kisan Shankar Kathore vs. Arun Dattatray Sawant [Kisan Shankar

Kathore vs. Arun Dattatray Sawant, (2014) 14 SCC 162] dealt with a situation similar to

that of this case. In that case, the election of the returned candidate was successfully

challenged on the ground of non-disclosure of material information. The appeal ﬁ led by

the returned candidate was dismissed by this Court by observing as follows: (SCCp.

188, para 43)

"43…Once it is found that it was a case of improper

acceptance, as there was misinformation or suppression of

material information, one can state that question of rejection

in such a case was only deferred to a later date. When

the Court gives such a ﬁ nding, which would have resulted

in rejection, the eﬀect would he same, namely, such a

candidate was not entitled to contest and the election is

void".

26. Mere ﬁ nding that there has been an improper

acceptance of the nomination is not suﬃ cient for a declaration

that the election is void under Section 100(1)(d). There

has to be further pleading and proof that the result of the

election of the returned candidate was materially aﬀected.

But, there would be no necessity of any proof in the event

of the nomination of a returned candidate being declared as

having been improperly accepted, especially in a case where

there are only two candidates in the fray. If the returned

candidate's nomination is declared to have been improperly

accepted it would mean that he could not have contested

the election and that the result of the election of the returned

candidate was materially aﬀected need not be proved further.

We do not ﬁ nd substance in the submission of Mr Giri that

the judgment in Durai Muthuswami [Durai Muthuswami vs.

N. Nachiappan, (1973) 2 SCC 45] is not applicable to the

facts of this case. The submission that Durai Muthuswami

[Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] is a

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

case of disqualiﬁ cation under Section 9-A of the Act and, so,

it is not applicable to the facts of this case is also not correct.

As stated supra, the election petition in that case was rejected

on the ground of non-compliance with Section 100(1)(d). The

said judgment squarely applies to this case on all fours. We

also do not ﬁ nd force in the submission that the Act has to be

strictly construed and that the election cannot be declared to

be void under Section 100(1)(d) without pleading and proof

that the result of the election was materially aﬀected. There is

no requirement to prove that the result of the election of the

returned candidate is materially aﬀected once his nomination

is declared to have been improperly accepted."

(37) Considering the legal position settled by the Hon'ble Supreme Court, in the decided cases above, this Court examined the case on hand with reference to the issues "suppression" and "improper acceptance of nomination of third respondent". Even though Additional Issue No.2 could have been framed with little more clarity, the parties and the counsels during trial and arguments have focused whether the third respondent has properly disclosed his assets and liabilities in the aﬃ davit in Form 26 properly and whether the suppression of assets and liabilities by third respondent leads to a ﬁ nding or declaration that the nomination of third respondent has been improperly accepted.

(38) After reopening of case, the 3rd respondent has marked Exs.R4 to R16 on 28.06.2023. The applications ﬁ led by the 3rd respondent in OA.Nos.537 to 539/2023 were allowed subject to the objections raised by the learned counsel for the petitioner as to the admissibility of the documents. Since the documents, namely, Exs.R4 to R16 were generated from computer, the main objection was that the document without due certiﬁ cate under Section 65-B of the Evidence Act is not admissible and the 3rd respondent is not competent to certify the certiﬁ cate under Section 65-B of Evidence Act or on other grounds. Therefore, before going into issues on merits, the objection raised by learned counsel for the election petitioner regarding admissibility of documents by referring to Section 65-B of Evidence Act is also to be considered.

(39) Section 65-B of Evidence Act reads as follows:-

65B. Admissibility of electronic records.—

(1) Notwithstanding anything contained in this Act, any

information contained in an electronic record which is printed

on a paper, stored, recorded or copied in optical or magnetic

media produced by a computer (hereinafter referred to as the

computer output) shall be deemed to be also a document, if the

conditions mentioned in this section are satisﬁ ed in relation to the

information and computer in question and shall be admissible in

any proceedings, without further proof or production of the original,

as evidence of any contents of the original or of any fact stated

therein of which direct evidence would be admissible.

32 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

(2) The conditions referred to in sub-section (1) in respect

of a computer output shall be the following, namely:—

(a) the computer output containing the information was

produced by the computer during the period over which the

computer was used regularly to store or process information for

the purposes of any activities regularly carried on over that period

by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained

in the electronic record or of the kind from which the information

so contained is derived was regularly fed into the computer in the

ordinary course of the said activities;

(c) throughout the material part of the said period, the

computer was operating properly or, if not, then in respect of

any period in which it was not operating properly or was out of

operation during that part of the period, was not such as to aﬀect

the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record

reproduces or is derived from such information fed into the

computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or

processing information for the purposes of any activities regularly

carried on over that period as mentioned in clause (a) of

sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that

period; or

(b) by diﬀerent computers operating in succession over that

period; or

(c) by diﬀerent combinations of computers operating in

succession over that period; or

(d) in any other manner involving the successive operation

over that period, in whatever order, of one or more computers

and one or more combinations of computers, all the computers

used for that purpose during that period shall be treated for

the purposes of this section as constituting a single computer;

and references in this section to a computer shall be construed

accordingly.

(4) In any proceedings where it is desired to give a statement

in evidence by virtue of this section, a certiﬁ cate doing any of the

following things, that is to say,—

(a) identifying the electronic record containing the statement

and describing the manner in which it was produced;

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

(b) giving such particulars of any device involved in the

production of that electronic record as may be appropriate for

the purpose of showing that the electronic record was produced

by a computer;

(c) dealing with any of the matters to which the conditions

mentioned in sub-section (2) relate, and purporting to be signed

by a person occupying a responsible oﬃ cial position in relation

to the operation of the relevant device or the management of the

relevant activities (whichever is appropriate) shall be evidence of

any matter stated in the certiﬁ cate; and for the purposes of this

sub-section it shall be suﬃ cient for a matter to be stated to the

best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) information shall be taken to be supplied to a computer if

it is supplied thereto in any appropriate form and whether it is so

supplied directly or (with or without human intervention) by means

of any appropriate equipment;

(b) whether in the course of activities carried on by any oﬃ cial

information is supplied with a view to its being stored or processed

for the purposes of those activities by a computer operated

otherwise than in the course of those activities, that information, if

duly supplied to that computer, shall be taken to be supplied to it in

the course of those activities;

(c) a computer output shall be taken to have been produced by a

computer whether it was produced by it directly or (with or without

human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference

to information being derived from other information shall be a

reference to its being derived therefrom by calculation, comparison

or any other process.

(40) In the case of Anvar P.V. Vs. P.K. Basheer and Others reported in 2014 [10] SCC 473, a Three Member Bench of Hon'ble Supreme Court has considered the scope of Section 65-B of Evidence Act and held as follows:-

"14. Any documentary evidence by way of an electronic record

under the Evidence Act, in view of Sections 59 and 65-A, can be

proved only in accordance with the procedure prescribed under

Section 65-B. Section 65-B deals with the admissibility of the

electronic record. The purpose of these provisions is to sanctify

secondary evidence in electronic form, generated by a computer.

It may be noted that the section starts with a non obstante clause.

Thus, notwithstanding anything contained in the Evidence Act, any

information contained in an electronic record which is printed on

a paper, stored, recorded or copied in optical or magnetic media

produced by a computer shall be deemed to be a document only if

34 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

the conditions mentioned under sub-section (2) are satisﬁ ed, without

further proof or production of the original. The very admissibility of

such a document i.e. electronic record which is called as computer

output, depends on the satisfaction of the four conditions under

Section 65-B(2). Following are the speciﬁ ed conditions under Section

65-B(2) of the Evidence Act:

(i) The electronic record containing the information should have

been produced by the computer during the period over which the

same was regularly used to store or process information for the

purpose of any activity regularly carried on over that period by the

person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or

of the kind from which the information is derived was regularly fed

into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was

operating properly and that even if it was not operating properly for

some time, the break or breaks had not aﬀected either the record or

the accuracy of its contents; and

(iv) The information contained in the record should be a

reproduction or derivation from the information fed into the computer

in the ordinary course of the said activity.

15. Under Section 65-B(4) of the Evidence Act, if it is desired

to give a statement in any proceedings pertaining to an electronic

record, it is permissible provided the following conditions are satisﬁ ed:

(a) There must be a certiﬁ cate which identiﬁ es the electronic

record containing the statement;

(b) The certiﬁ cate must describe the manner in which the

electronic record was produced;

(c) The certiﬁ cate must furnish the particulars of the device

involved in the production of that record;

(d) The certiﬁ cate must deal with the applicable conditions

mentioned under Section 65-B(2) of the Evidence Act; and

(e) The certiﬁ cate must be signed by a person occupying a

responsible oﬃ cial position in relation to the operation of the relevant

device.

16. It is further clariﬁ ed that the person need only to state

in the certiﬁ cate that the same is to the best of his knowledge and belief

Most importantly, such a certiﬁ cate must accompany the electronic record

like computer printout, compact disc (CD), video compact disc (VCD), pen

drive, etc., pertaining to which a statement is sought to be given in evidence,

when the same is produced in evidence. All these safeguards are taken to

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

ensure the source and authenticity, which are the two hallmarks pertaining

to electronic record sought to be used as evidence. Electronic records being

more susceptible to tampering, alteration, transposition, excision, etc. without

such safeguards, the whole trial based on proof of electronic records can lead

to travesty of justice.

17. Only if the electronic record is duly produced in terms

of Section 65-B of the Evidence Act, would the question arise as to the

genuineness thereof and in that situation, resort can be made to Section

45-A—opinion of Examiner of Electronic Evidence."

(41) This Court is able to see that the documents produced by 3rd respondent by way of additional documents particularly Exs.R4 to R16 are vulnerable self-serving documents. Even though documents were permitted to be marked subject to every objection raised by the learned counsel for the election petitioner at the time of marking the documents, this Court ﬁ nds that the 3rd respondent has not produced any other document except the said documents to controvert the speciﬁ c averments in the election aﬃ davit. The 3rd respondent who is in control of the documents is expected to produce the original records like the accounts of various Firms and Organizations in which the 3rd respondent was holding some share or interest. Therefore, this Court will now consider the documents which satisfy the requirements of law to be acted upon as a document admissible in evidence.

SUPPRESSION OF EQUITY SHARES OR ITS VALUE IN M/S.VANI FABRICS

PRIVATE LIMITED:-

(42) On the issue of suppression, it is the speciﬁ c case of the petitioner that the 3rd respondent had suppressed his holdings of 15,000 shares in M/s.Vani Fabrics Private Limited as on the date when the election aﬃ davit was ﬁ led. However, it is contended by the 3rd respondent that the 3rd respondent had already transferred his shares. The petitioner relied upon the Balance Sheet for the Financial Year ended by 31.03.2018. Since the period covered under Ex.P5 is prior to the date of ﬁ ling of nomination, the document-Ex.P5 is not relevant. Exs.C4 to C7 are documents produced by the Registrar of Companies, Coimbatore who was examined as CW2. The documents-Exs.C4 and C5 show that they pertain to M/s.Vani Fabrics Private Limited for the Financial Year ended on 31.03.2018. Exs.C4 and C5 are the ﬁ nancial statement and Annual Returns of the company ﬁ led by company relating to the period from 01.04.2017 to 31.03.2018. Exs.C4 and C5 shows 3rd respondent and his brother as Directors, each holding 15,000 equity shares in M/s.Vani Fabrics Private Limited. These documents pertaining to the previous period are not relevant. The Registrar of Companies, Coimbatore, who is examined as CW2, produced Exs.C6 and C7 along with annexures. Ex.C6 is Form DIR-12 dated 21.08.2018 with annexures and Ex.C7 is Form No.MGT-7 dated 31.12.2019 with annexure relating to M/s.Vani Fabrics. From the annexures to Ex.C6, it is seen that the third respondent and his brother have given letters of resignation to the Board of Directors on 16.08.2018 informing that they are resigning from the post of Directorship. They requested the Board to inform the Registrar of Companies (ROC) and all the statutory authorities. Certiﬁ ed copy of the resolution passed at the meeting of Board of Directors on 16.08.2018, available in the annexures shows that the resignation of third respondent and his brother was accepted on 16.08.2018. From the annexure to Ex.C7, it is seen 36 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

that transfer of 15,000 equity shares held by the third respondent in favour of his brother is shown in the Annual Returns submitted by the company on 28.06.2019. In the Return, it is stated that transfer of 15,000 equity shares had been registered on 17.03.2019. However, the transfer of shares was informed to the Registrar of Companies after election. List of shareholders furnished by the Director of Company as on 31.03.2019 shows that the third respondent is not holding any shares as on 31.03.2019. Though the list is signed by one of the Directors, no date is mentioned. Hence, as per Returns furnished by the Company to ROC after election, the third respondent is neither a Director nor a shareholder as on 17.03.2019. However, no other statutory record maintained by the Company is produced. Since it is stated that the third respondent resigned from Directorship and his resignation was accepted, the case of petitioner that the third respondent did not disclose his remuneration as Director of M/s.Vani Fabrics cannot be readily accepted unless there is positive evidence to the contrary. Hence, as per Returns furnished by the Company, after election the third respondent is not holding any shares in the company M/s.Vani Fabrics Private Limited as on 18.03.2019. However, the case of 3rd respondent that he has transferred his shares on 17.03.2019 is not corroborated by any other document, except Ex.C7. In the Annual Return, it is stated that share transfer was registered on 17.03.2019. No other Company record or evidence is produced by 3rd respondent to corroborate. CW2 categorically states that registration is not done by Registrar of Companies and it is done by the Company. The list of shareholders furnished by the Company to ROC shows that the 3rd respondent was not holding any share in M/s.Vani Fabrics as on 31.03.2019. This is just a piece of paper which can be prepared any time. From the list of shareholders as on 31.03.2019, annexed with Ex.C7, this Court ﬁ nds that the share of brother of 3rd respondent is increased from 15000 to 30000 to show that the 3rd respondent has transferred his shares in favour of his brother Mr.Jayapradeep Panneerselvam. However, it is contended by the petitioner in the reply aﬃ davit that the alleged share transfer is done by fabrication of records by 3rd respondent after ﬁ ling the election petition.This was stoutly denied by 3rd respondent. CW2, Registrar of Companies, Coimbatore, admitted that as per the records of the company, the 3rd respondent ceased to be a Director of M/s.Vani Fabrics from 16.08.2018. Regarding suppression of assets and liabilities, the burden lies on the petitioner to prove it. From Ex.C7, the name of 3rd respondent does not ﬁ nd a place as a shareholder as per information furnished to the Registrar of Companies and hence, this Court may accept the case of 3rd respondent that he ceased to be a shareholder with eﬀect from 17.03.2019 in the absence of any other evidence or an attempt by petitioner to call for records from the company to show that the company had manipulated its records. There is no cross examination of RW1 regarding the transfer of shares or about the suppression by holding shares in the company M/s.Vani Fabrics. Ex.R9 produced by 3rd respondent also shows that 15,000 shares held by 3rd respondent in M/s.Vani Fabric Private Limited was transferred to his brother. Therefore, this Court is of the view that the petitioner is neither a Director nor a shareholder and the case of the 3rd respondent that he had transferred the shares on 17.03.2019 in favour of his brother can be accepted.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

SUPPRESSION OF THE VALUE OF SHARES TRANSFERRED AND OTHER

ASSETS AND INCOME FROM DIFFERENT SOURCES:

(43) However, the matter does not rest with that. The fact that the 3rd respondent has transferred his shares to his brother just prior to the ﬁ ling of nomination can be accepted as seen from the documents. Transfer of shares has to be for a consideration. As pointed out by the learned counsel for the petitioner, the value of shares as per company records was Rs.27 lakhs. Even the book value of the shares, according to the Books of Accounts of company of M/s.Vani Fabrics, was Rs.100/- per share. The case of the petitioner in the reply to the counter aﬃ davit that the 3rd respondent has suppressed his asset namely the value of shares transferred by him in favour of his brother just few days prior to the ﬁ ling of nomination as an alternative plea cannot be ignored. What is more important is that the 3rd respondent in his reply aﬃ davit in response to the counter aﬃ davit of 26th respondent, has stated that the shares were transferred to his own brother and there is no question of 3rd respondent receiving any consideration. The transaction was referred to as an internal adjustment between 3rd respondent and his brother. Quite surprisingly, the 3rd respondent has stated that he has paid capital gains for the said transaction. This of course with some degree of uncertainty would suggest that the shares were transferred for a valuable consideration with proﬁ t and there is suppression of assets namely the consideration for the transferred shares and it is a relevant and material fact if it has to be accepted that the disclosure of assets and liabilities is mandatory.

(44) This Court has noted that the 3rd respondent has no explanation either in the counter aﬃ davit or in his reply about the consideration he had received by way of transfer of 15,000 equity shares in M/s.Vani Fabrics Private Limited. It is surprising to note that during examination, the 3rd did not mention about the transfer of shares. However, the 3rd respondent by way of additional documents produced Ex.R7-Ledger Account of the 3rd respondent pertaining to the loan transaction between the 3rd respondent and his brother Mr.Jayapradeep. This document is ﬁ led along with the certiﬁ cate issued by the 3rd respondent's Auditor under Section 65-B of Evidence Act. The Auditor is not the person who is competent to certify the accounts maintained by the 3rd respondent. Learned counsel for the election petitioner pointed out that this document reveals more about the suppression. This document indicates that the 3rd respondent has paid certain amounts by way of repaying Housing Loan. The 3rd respondent then produced Ex.R12-Ledger Account of 3rd respondent's brother. The same Auditor has issued Certiﬁ cate under Section 65-B of Evidence Act. Ex.R12 would show a receipt of Rs.24 lakhs by 3rd respondent's brother from the 3rd respondent. The 3rd respondent also produced Ex.R14-Income Tax Returns submitted by the 3rd respondent and Ex.R14-Income Tax Returns submitted by the 3rd respondent and Ex.R15-Income Tax Returns submitted by 3rd respondent's brother. Learned counsel for the petitioner referring to these two documents, submitted that if these two documents were to be accepted, then it would reveal that the 3rd respondent has suppressed several income in his aﬃ davit in Form-26. It is pointed out from the documents that the 3rd respondent has disclosed a sum of Rs.33,03,136/- as liability of 3rd respondent to his brother. The 3rd respondent's brother in Ex.R15 has shown a sum of Rs.66,42,781/- as the amount payable by his brother, 3rd respondent herein. PW1 deposed that the 3rd respondent has not disclosed his assets and liabilities and his sources of income, particularly, his salary which he is 38 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

receiving as a Director of a Company. Even though there is no speciﬁ c pleading about salary, the allegation of suppression is on the basis of balance sheet of the Company M/s.Vani Fabrics Private Limited. Referring to the fact that the 3rd respondent is a shareholder and Director in M/s.Vani Fabrics Private Limited, it is suggested that the 3rd respondent is receiving salary from M/s.Vani Fabrics Private Limited as the Director of the Company. The Ledger produced by the 3rd respondent would reveal that the 3rd respondent was receiving a sum of Rs.3,00,000/- per month as remuneration from M/s.Vijayanth Developers Private Limited. RW1 admitted that he has shown income from salaries as Rs.45,60,000/- in his Income Tax Returns marked as Ex.R14 and that he has totally received a sum of Rs.35,60,000/- as salary from M/s.Vijayanth Developers Private Limited as per Ex.R14. From the Income Tax Returns submitted by the 3rd respondent, the fact that the 3rd respondent has invested in diﬀerent partnership concerns is shown. Suppression of a sum of Rs.36,00,000/- the 3rd respondent has received from the Company, M/s.Vijayanth Developers Private Limited as Director of the Company, is reflected from Ex.R9-Ledger produced by the 3rd respondent himself. Similarly, Ex.R14 surprisingly reveal not only the salary income of the 3rd respondent as Director of M/s.Vijayanth Developers Private Limited but also the income from various other sources. A sum of Rs.24,00,000/- shown as the remuneration the 3rd respondent had received from a partnership ﬁ rm by name Jayam Vijayam Enterprises. RW1 during further cross examination admitted that he had received a remuneration of Rs.24 lakhs from the Firm Jayam Vijayam Enterprises. He admitted that in the Income Tax Returns, he has shown a sum of Rs. 1,38,27,565/- as proﬁ t towards his 50% share. He has also admitted his capital in the said Firm as Rs.51,000/-. Similarly, the 3rd respondent has shown receipt of a sum of Rs. 15,00,000/- by way of interest. During cross examination of 3rd respondent, he admitted that he collected interest from one Manivannan. He also admitted that he had given a sum of Rs.30,00,000/- to one Manivannan during 2014-15 and he has shown the sum of Rs. 15,00,000/- as interest for the said amount lent to him. Under the guise of explaining the consideration he had received by transferring 15,000 shares to his own brother, the 3rd respondent has recalled himself and marked several documents to show that he has suppressed several income in his Form 26. The adjustment of a sum of Rs.24,00,000/- which is by way of consideration for transfer of shares cannot be accepted. Learned senior counsel for the 3rd respondent submitted that this Court should accept that the 3rd respondent established the fact that the consideration for transfer of 15,000 shares in M/s.Vani Fabrics Private Limited is accounted by Book transfer and hence, the petitioner's contention regarding non-disclosure of consideration received by 3rd respondent has to be rejected. Since this Court has already seen that the amount disclosed by 3rd respondent as payable to his brother as per the aﬃ davit in Form-26 does not tally with the amount payable 3rd respondent to his brother as per the Income Tax Returns of the 3rd respondent, the 3rd respondent's case based on additional documents cannot be accepted or believed. While examining the entries in the Ledger along with the Income Tax Returns submitted by 3rd respondent as well as his brother, this Court has to conclude that the 3rd respondent had suppressed not only the asset to the extent of consideration the 3rd respondent had received by transferring his 15,000 shares in M/s.Vani Fabrics Private Limited but also the income he had received by way of salary from M/s.Vijayanth Developers Private Limited, the salary from the partnership ﬁ rm by name Jayam Vijayam Enterprises 39

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

and the interest he has earned by lending money. Even the amount that was lent to a private individual to collect a huge amount of Rs. 15,00,000/- towards interest is not disclosed. This is an asset. The proﬁ t he has earned in the partnership ought to have been shown as his income.

(45) Apart from the averments regarding suppression of assets in the form of shares or by transfer of 15,000 equity shares in M/s.Vani Fabrics, learned counsel for the petitioner tried to substantiate his case of suppression by referring to the objections raised by 19th respondent and an NGO before the Returning Oﬃ cer. The document-Ex.C17, is the objection raised by an NGO under the name Arappor lyakkam on the date of scrutiny i.e., on 27.03.2019. It was pointed out from the aﬃ davit in Form 26 that there is a discrepancy between the value of movable assets shown by 3rd respondent and the total amount of movable assets disclosed in Form 26. It is rightly pointed out in the objection that the total assets disclosed by third respondent in Form 26 is only to the tune of Rs.1,35,30,394/-. Since the candidate has disclosed his total value of movable assets owned by him as Rs.4,16,27,224/-, the disclosure as per aﬃ davit is false.

(46) Another objection petition is ﬁ led by 19th respondent on the date of scrutiny which is also marked as Ex.R3 and Ex.C12. One of the objections raised is regarding suppression of a liability of third respondent to the company to the tune of Rs.65, 000/- and the suppression of assets of company M/s.Vijayanth Developers to the tune of Rs.34,93,355/- and a sum of Rs.3,15,00,000/-. After scrutiny, 3rd respondent sent an aﬃ davit to the Returning Oﬃ cer seeking an amendment to the Election Aﬃ davit to change the ﬁ gure towards the amount payable to him by M/s.Vijayanth Developers Private Limited as Rs.3,17,49,280/-. Surprisingly, the Returning Oﬃ cer has forwarded Exs.C12 and C17 dated 27.03.2019 to the 3rd respondent on 01.04.2019, three days after scrutiny. The 3rd respondent appears to have sent a reply dated 05.04.2019 to the objection raised by 19th respondent, regarding the non-disclosure of a sum of Rs.65, 000/- which was due from the 3rd respondent to the company, namely, M/s.Vijayanth Developers. The 3rd respondent in his reply to the objection, marked as Ex.C14, stated that the total loan amount due from the company to the 3rd respondent is Rs.3,17,49,280/-. Along with reply, a letter obtained from his brother as Director of M/s.Vijayanth Developers (P) Ltd., marked as Ex.C19 is also sent to Returning Oﬃ cer to show that the Company has acknowledged that a sum of Rs.3,17,49,380/- is due to third respondent from the company. This ﬁ gure of Rs.3,17,49,280/- is supposed to be mentioned in the election aﬃ davit in Form 26. As pointed out earlier, an aﬃ davit of the 3rd respondent dated 29.03.2019 is submitted to the Returning Oﬃ cer to amend the election aﬃ davit with reference to Column No.5 in page No.7 of the aﬃ davit in Form 26 ﬁ led by 3rd respondent. The 3rd respondent has admitted in the aﬃ davit, that by mistake the loan given by 3rd respondent to M/s.Vijayanth Developers, was mentioned as Rs.36,52,450/- instead of Rs.3,17,49,280/-. Therefore, non-disclosure or false disclosure of assets in Election Aﬃdavit in Form 26 is admitted by the 3rd respondent.

(47) However, the Returning Oﬃ cer who has completed scrutiny on 27.03.2019 and accepted the nomination of 3rd respondent on 27.03.2019 sought for proof from 3rd respondent on 01.04.2019 and received reply and documents from 3rd respondent after the scrutiny is over. This is a serious irregularity. The 3rd respondent has 40 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

disclosed his shareholding in M/s.Vijayanth Developers and the fact that a sum of Rs.36,52,450/- is due to him from the said company as per the aﬃ davit ﬁ led by him. An aﬃ davit to amend the aﬃ davit in Form 26 is submitted by the 3rd respondent after scrutiny and acceptance of nomination by the Returning Oﬃ cer on 27.03.2019 to the eﬀect that the amount payable to him from M/s.Vijayanth Developers is not Rs.36,58,450/- as mentioned in Form-26 but Rs.3,17,49,280/-.

(48) Section 36 of the Representation of People Act, 1951 reads as follows:-

36. Scrutiny of nominations.—

(1) On the date ﬁ xed for the scrutiny of

nominations under section 30, the candidates, their

election agents, one proposer 4*** of each candidate,

and one other person duly authorised in writing by

each candidate, but no other person, may attend

at such time and place as the returning oﬃ cer may

appoint; and the returning oﬃ cer shall give them all

reasonable facilities for examining the nomination

papers of all candidates which have been delivered

within the time and in the manner laid down in

section 33. (2) The returning oﬃ cer shall then

examine the nomination papers and shall decide all

objections which may be made to any nomination and

may, either on such objection or on his own motion,

after such summary inquiry, if any, as he thinks

necessary, 5 [reject] any nomination on any of the

following grounds:— 6 [(a) 7 [that on the date ﬁ xed

for the scrutiny of nominations the candidate] either

is not qualiﬁ ed or is disqualiﬁ ed for being chosen to

ﬁ ll the seat under any of the following provisions that

may be applicable, namely:— Articles 84, 102, 173

and 191, 8*** 9 [Part II of this Act and sections 4 and

14 of the Government of Union Territories Act, 1963

(20 of 1963)] 10***; or (b) that there has been a failure

to comply with any of the provisions of section 33 or

section 34; or (c) that the signature of the candidate or

the proposer on the nomination paper is not genuine.]

(3) Nothing contained in 11 [clause (b)

or clause (c)] of sub-section (2) shall be deemed to

authorise the 12[rejection] of the nomination of any

candidate on the ground of any irregularity in respect

of a nomination paper, if the candidate has "been duly

nominated by means of another nomination paper in

respect of which no irregularity has been committed.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

(4) The returning oﬃ cer shall not reject

any nomination paper on the ground of any 1***

defect which is not of a substantial character.

(5) The returning oﬃ cer shall hold the

scrutiny on the date appointed in this behalf under

clause (b) of section 30 and shall not allow any

adjournment of the proceedings except when such

proceedings are interrupted or obstructed by riot

or open violence or by causes beyond his control:

Provided that in case 2 [an objection is raised by the

returning oﬃ cer or is made by any other person] the

candidate concerned may be allowed time to rebut it

not later than the next day but one following the date

ﬁ xed for scrutiny, and the returning oﬃ cer shall record

his decision on the date to which the proceedings

have been adjourned.

(6) The returning oﬃ cer shall endorse

on each nomination paper his decision accepting or

rejecting the same and, if the nomination paper is

rejected, shall record in writing a brief statement of

his reasons for such rejection.

[(7) For the purposes of this section, a

certiﬁ ed copy of an entry in the electoral roll for the time

being in force of a constituency shall be conclusive

evidence of the fact that the person referred to in

that entry is an elector for that constituency, unless

it is proved that he is subject to a disqualiﬁ cation

mentioned in section 16 of the Representation of the

People Act, 1950 (43 of 1950).

(8) Immediately after all the nomination

papers have been scrutinised and decisions

accepting or rejecting the same have been recorded,

the returning oﬃ cer shall prepare a list of validly

nominated candidates, that is to say, candidates

whose nominations have been found valid, and aﬃ x

it to his notice board.]"

(49) Following the judgment of Hon'ble Supreme Court, the Election Commission has issued revised instructions and the Returning Oﬃ cer is required to follow the instructions contained in the Handbook containing instructions. Clauses 6.6, 6.7, 6.10.1, 6.11.1 of Handbook for Returning Oﬃ cer issued in February, 2019, relates to scrutiny, are relevant and hence, they are extracted:

42 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

"6.6 OBJECTIONS AND SUMMARY INQUIRY REASONS

TO BE RECORDED IN EVERY CASE OF OBJECTION OR

REJECTION

6.6.1 Even if no objection has been raised with regard

to a nomination paper, Returning Oﬃ cer has to satisfy himself/

herself that it is valid in law. If any objection is raised, Returning

Oﬃ cer shall have to hold a summary inquiry to decide the same

and to treat the nomination paper to be either valid or invalid.

Returning Oﬃ cer should record his/her decision in each case

giving brieﬂ y the reasons where an objection has been raised

or why he/she rejects the nomination paper. Returning Oﬃ cer's

decision could be challenged later in an election petition and

hence the importance of recording a brief statement of reasons

at this time. If Returning Oﬃ cer accepts the nomination paper of

a candidate overruling the objections raised by an objector, he

may be supplied with a certiﬁ ed copy of his/her decision upon his

request.

6.6.2 ECI Instruction no.509/MISC/ECI/CIRCULAR/ FUNC/

JUD/RCC/2017, dated 13.02.2017 may be referred to in case of

objections against nomination under section 9A on the ground of

subsisting contract with Govt.

6.7 PRESUMPTION OF VALIDITY

6.7.1 There is a presumption that every nomination paper is

valid unless the contrary is prima facie obvious or has been made

out. In case of a doubt as to the validity of a nomination paper,

the beneﬁ t of such doubt must go to the candidate concerned

and the nomination paper should be held to be valid. Remember

that whenever a candidate's nomination paper is rejected without

proper reason that can be a reason to set aside the election in an

election petition. Returning Oﬃ cer should adopt a comparatively

liberal approach in dealing with minor technical or clerical errors.

Sub-section (4) of Section 36 mandates that nomination paper

shall not be rejected on a ground or defect which is not substantial.

6.10.1 Returning Oﬃ cer must reject a nomination paper, if

i) the candidate is clearly not qualiﬁ ed in law to be a

member of the Legislature concerned, or

ii) the candidate is clearly disqualiﬁ ed in law to be such

member, or [N.B. As regards the persons who have been

disqualiﬁ ed under Sections 8A and 11A(b) (for corrupt practices)

and 10-A (for failure to lodge account of election expenses) of the

said Act, 1951, there would be a list of such disqualiﬁ ed persons.

Returning Oﬃ cer should obtain the list from CEO]. Complains

regarding other disqualiﬁ cations, Returning Oﬃ cer has to decide

based on summary inquiry.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

iii) Requirements of Section 33 of R.P. Act, 1951 are

not fulﬁ lled.

iv) The prescribed aﬃ davit has not been ﬁ led at all by the

candidate, or [N.B. If the prescribed aﬃ davit has been ﬁ led but are

alleged or found to be defective or containing false information,

the nomination should NOT be rejected on this ground.]

v) The nomination paper has not been signed by the

candidate and/or by the required number of his proposer(s), or

vi) The proper deposit has not been made in accordance

with Section 34, or

vii) The oath or aﬃ rmation is not made by the candidate as

required under the Constitution of India, Government of Union

Territories Act, 1963 or the Government of National Capital

Territory of Delhi Act, 1991, as the case may be, or

viii) The candidate does not belong to the Scheduled Caste

or the Scheduled Tribe and he has ﬁ led nomination paper to

contest a seat reserved for the Scheduled Castes or, as the case

may be, the Scheduled Tribes, or

ix) Where the candidate is not an elector of the constituency

for which he has ﬁ led nomination paper and he has neither

ﬁ led a copy of the electoral roll of the constituency in which he

is registered as an elector or of the relevant part thereof or a

certiﬁ ed copy of the relevant entries relating to his name in such

electoral roll along with the nomination paper nor produced the

same at the time of scrutiny as required under Section 33(5) of

the said Act.

x) Columns were left blank in the aﬃ davit and fresh aﬃ davit

not ﬁ led in spite of notice.

Note on item (viii): In order to prevent non-SC/ST persons

contesting election from reserved constituencies, the Returning

Oﬃ cers at the time of scrutiny of nominations should satisfy

themselves that the candidates contesting from reserved

constituencies belong to SC or ST, as the case may be. Wherever

in doubt, the Returning Oﬃ cer must insist on production of

SC/ST certiﬁ cate issued by competent authorities. Where,

however, the certiﬁ cate produced by the candidate is also

challenged, the Returning Oﬃ cer need not go into that question,

except where it is alleged that the certiﬁ cate produced is forged or

is not issued by competent authority. In the case of any allegation/

suspicion about the genuineness of the certiﬁ cate, the Returning

Oﬃ cer should get the position crosschecked with the authority

which purportedly issued the SC/ST certiﬁ cate in question, before

deciding the validity of the nomination paper of the candidate

concerned. If on suchcross-checking/ veriﬁ cation, the Returning

44 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

Oﬃ cer is satisﬁ ed that the certiﬁ cate in question is not genuine,

he should not only reject the nomination of the candidate

concerned but should also initiate criminal proceeding against the

candidate for adducing forged documentary evidence before him.

(Instruction No. 4/3/2008/JS-II (Vol. III) dated 2.7.2008).

6.11.1 If a candidate to whose nomination paper an objection

has been taken applies for time to rebut such objection. Returning

Oﬃ cer should adjourn the scrutiny of that candidate. The

adjourned cannot go beyond 11.00 a.m, on the second day after

the date ﬁ xed for scrutiny. The scrutiny of all other nomination

papers must, of course, be completed on the day of scrutiny,

notwithstanding such adjournment in respect of one or more

nomination papers."

(50) The enquiry before the Returning Oﬃ cer is summary in nature. This Court is unable to ﬁ nd any clue from the reading of Section 36 of the Act, 1951, to show that the Returning Oﬃ cer is permitted to collect aﬃ davits or documents from contestants or third parties even after scrutiny of nomination. Admittedly, in this case, as spoken by the Returning Oﬃ cer, the nomination of 3rd respondent was accepted by the Returning Oﬃ cer on the date of scrutiny. On the date of scrutiny, the objection raised by a third party "Arappor lyakkam" is a valid objection and the non-disclosure/false disclosure is admitted by the 3rd respondent himself by submitting an aﬃ davit after scrutiny contrary to statutory provisions and the guidelines given in Hand Book for Returning Oﬃ cer. This only shows that the Returning Oﬃ cer who was supposed to consider the objection on the date of scrutiny of nomination, failed to do that and has accepted the nomination without an explanation or correction. However, in the course of argument, it was pointed out that the objection by the stranger "Arappor lyakkam" was only sent on 27.03.2019 and it was not submitted at the time of scrutiny. Even if no objection is received, the Returning Oﬃ cer has to satisfy himself that the nomination is valid. If an objection is received as per clause 6.6.1, the Returning Oﬃ cer has to hold a summary enquiry to decide the same. Returning Oﬃ cer should record his/her decision. As per instructions, the Returning Oﬃ cer can reject the nomination paper when columns are left blank in the aﬃ davit and fresh aﬃ davit is not ﬁ led in spite of notice. When no plausible explanation is given by anyone present before the Returning Oﬃ cer on the date of scrutiny of nomination and the nondisclosure or mistake in the statutory aﬃ davit in Form 26 is admitted by the Returned Candidate and the non-disclosure is evident, the Returning Oﬃ cer has simply ignored the objection and accepted nomination by recording acceptance on 27.03.2019. This is a serious irregularity. The 3rd respondent has given a supporting aﬃ davit on 29.03.2019. The Returning Oﬃ cer becomes functus oﬃ cio oﬃ cer after the scrutiny. Therefore, the document submitted after scrutiny cannot be considered. Even before this Court, the 3rd respondent has not produced any independent or acceptable document to show that a sum of Rs.3,17,49,280/- is due from the company to him. No details or particulars as to how this amount became due, is given anywhere in the pleading or during his evidence as RW1.Therefore, this Court is of the view that the 3rd respondent has consciously ignored vital informations required to explain the discrepancies even before this Court. Unfortunately, the petitioner has not raised a ground in the petition pointing 45

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

out the discrepancy or the non-disclosure even while ﬁ ling the statutory aﬃ davit in Form-26. When this was pointed out by Court, the 3rd respondent requested this Court to give an opportunity to explain the discrepancy. In that process, the 3rd respondent has now admitted suppressions to the eﬀect that he has not disclosed several assets and sources of his income as required in the format prescribed in Form-26. Since a speciﬁ c issue has been framed whether the Returning Oﬃ cer has conducted the election of Theni Parliamentary Constituency in an impartial manner and in accordance with the provisions of the Conduct of Election Rules, 1961 and during the scrutiny of nominations under Section 36 of the RP Act, 1951, this Court, from the facts as seen from the documents and evidence, ﬁ nds that the Returning Oﬃ cer has not conducted the scrutiny of nominations strictly in terms of Section 36 of the RP Act, 1951 and instructions given under the Hand Book. She has shown her partisan attitude in favour of 3rd respondent at the time of scrutiny. As a consequence, this Court holds that the nomination of 3rd respondent has been improperly accepted by the Returning Oﬃcer.

(51) During argument, learned Senior counsel submitted that mentioning of a sum of Rs.36,52,450/- instead of Rs.3,17,49,280/- is merely a clerical mistake inadvertently by the steno. In any other case, this Court would have accepted this explanation. In the process of explaining how a sum of Rs.3,17,49,280/- is due from a Company, the Returned Candidate admitted his income and assets from various sources which are not disclosed in the statutory aﬃ davit in Form-26. In the Election Aﬃ davit format, speciﬁ c instructions are given to specify every investments separately. The Returned Candidate has mentioned only agriculture and business as source of income. He has not disclosed his income by lending money and the money lent for earning a sum of Rs.15,00,000/- by way of interest. He has not disclosed his income by way of salary drawn by him as Director of a Company. His capital in a Partnership Firm is not disclosed. His partnership business and the proﬁ t he has earned in the real estate business is not disclosed even though he admits in his evidence when confronted with his documents. The right to know about the candidate standing for election has been brought within the sweep of Article 19(1)(a) by Hon'ble Supreme Court in Union of India vs. Association for Democratic Reforms and others reported in (2002) 5 SCC 294. The amendment in Representation of the People Act, 1951, introducing Section 33-B to nullify the judgment of Hon'ble Supreme Court in Association for Democratic Reform's case was struck down by Hon'ble Supreme Court in People's Union for Civil Liberties vs. Union of India and another reported in (2003) 4 SCC 399, on the ground that the legislature has no power to review the decision of Supreme Court. The disclosure of information is to facilitate and augment the freedom of expression as observed by Hon'ble Supreme Court in the later judgment. The right to know about the contestant who is going to represent the people will not be eﬀective unless the information about the assets and liabilities from all sources is known to the electors. Considering the purpose behind disclosure, the candidate is required to disclose even the assets and liabilities of his spouse and dependents. The majority in the latter judgment even made educational qualiﬁ cation to be mandatorily disclosed.

( 5 2 ) I n M a d i r a j u Ve n k a t a R a m a n a R a j u v s . P e d d i r e d d i g a r i Ramachandra Reddy and others reported in (2018) 14 SCC /, the Hon'ble Supreme Court had occasion to deal with an Appeal against the order of High Court allowing 46 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

the Application ﬁ led in the Election Petition to strike out Para Nos. 2 to 9 & 11 of the Election Petition on the ground that they are not supported by material facts and to dismiss the Election Petition under Order VII Rule 11 of CPC for want of cause of action. The Hon'ble Supreme Court, while setting aside the order of High Court, observed that the reliefs claimed by the appellant (petitioner in Election Petition) are founded on grounds inter alia related to Section 100(1)(d)(i) of Representation of the People Act, 1951 and the question whether a particular fact is material or not depends upon the special facts and circumstances of the case. As extracted earlier, in Resurgence India's case reported in (2014) 14 SCC 189, the Hon'ble Supreme Court has held that it is the duty of the Returning Oﬃ cer to check whether the information required is fully furnished at the time of ﬁ ling of aﬃ davit with the nomination paper and the nomination paper is liable to be rejected if a candidate fails to ﬁ ll the blanks even after reminder by Returning Oﬃ cer.

(53) In this case, there is speciﬁ c pleading regarding suppression of assets and liabilities and improper acceptance of nomination by Returning Oﬃ cer. In the reply to the counter ﬁ led by third respondent, the petitioner has speciﬁ cally pleaded the partisan attitude of Returning Oﬃ cer accepting the nomination of third respondent. The issues framed by this Court and the witnesses examined would amply show that the parties have conducted the trial with the full understanding of the case. The Returning Oﬃ cer was examined as Court witness (C.W.3) and he marked Exs.C8 to C18 relating to the scrutiny of nomination ﬁ led by the third respondent. This Court has already found that the statutory aﬃ davit ﬁ led by 3rd respondent is defective. The aﬃ davit ﬁ led by 3rd respondent after the scrutiny cannot be read along with the election aﬃ davit in Form 26. The Returned Candidate has shown the value of his movable assets at Rs.4,16,27,224/-. But, he has disclosed the movable assets to the value of Rs.1,35,30,394/-. This false disclosure is explained by an aﬃ davit which cannot be accepted as it was not there when the 3rd respondent's nomination was accepted. An explanation that such huge discrepancy was a typographical mistake cannot be readily accepted especially disclosure by over-valuing assets may be with a purpose. The Returning Oﬃ cer may accept the nomination even if it is defective. However, such improper acceptance can be challenged in this election petition. In the circumstances, the 3rd respondent at least owe a moral responsibility to this Court explaining his non-disclosure. The document produced before the Returning Oﬃ cer is a letter by brother of 3rd respondent acknowledging the huge liability of the Company M/s.Vijayanth Developers. The Balance Sheet / Financial Statement of the Company as on 31.03.2018 shows only a short term borrowal of money to the tune of Rs.65,000/- from the Company. This Court is unable to ﬁ nd how the 3rd respondent could pump in such a huge money of more than Rs.3.17 Crores to the Company which has admittedly borrowed a huge sum of Rs.10 Crores on the collateral security given by 3rd respondent to the value of around Rs.6 Crores. If the non-disclosure without an explanation or supporting document is condoned, that will certainly go against the spirit in which the Hon'ble Supreme Court has laid principles to save the democracy as part of basic structure of our Constitution.

(54) For all the reasons stated above, this Court holds that the aﬃdavit ﬁled

under Rule 4[A] of the Conduct of Election Rules, 1961, has not been validly

made, Further this Court holds that the Returned Candidate has suppressed

his assets equivalent to the value of 15,000 equity shares in M/s.Vani Fabrics

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

Private Limited allegedly transferred by the Returned Candidate in favour of his

brother and other assets and sources of income as admitted by him. Further,

the 3rd respondent has given a false information in the Election Aﬃdavit ﬁled

under Rule 4[A] of the Conduct of Election Rules, 1961. As regards Additional

Issue No.3, this Court conclude that the Returning Oﬃcer has not conducted

the summary enquiry during scrutiny of nomination in the manner as expected

by Returning Oﬃcer in accordance with law as explained.

(55) Though the petitioner has, in his reply aﬃ davit, has also referred to a mortgage of the property of 3rd respondent in relation to a loan obtained by the Company M/s.Vijayanth Developers Private Limited, the liability of a Company is not a liability of the individual. The statutory aﬃ davit ﬁ led by the Returned Candidate refers to the loan borrowed to by the Returned Candidate himself from the City Union Bank, Mandaveli Branch. The objection of the petitioner is that the 3rd respondent has suppressed the mortgage of his property for the loan advanced to the Company to the tune of Rs.10 Crores. It is also alleged that the property oﬀered by the 3rd respondent as collateral, has been undervalued. This Court is unable to accept the case of the petitioner that there is suppression of an asset or liability of the 3rd respondent by showing that the Company in which the 3rd respondent is a shareholder, has borrowed money by mortgaging his personal property. It is not shown that the 3rd respondent has given personal guarantee so that the Bank may proceed against the 3rd respondent for the liability of the Company. A Company is diﬀerent from a shareholder or a Director of a Company. The mortgage created by the 3rd respondent may be an encumbrance over the property owned by the returned candidate. This Court is unable to accept the liability of M/s.Vijayanth Developers as the liability of 3rd respondent. The 3rd respondent has disclosed the mortgage in favour of the Bank in respect of the property owned by him. Therefore, this Court is unable to accept the case of the petitioner in relation of the mortgage and liability of the Company M/s.Vijayanth Developers Private Limited.

ISSUE NO [2] AND ADDITIONAL ISSUE NO[2]:- CORRUPT PRACTICES:-

(56) Though several allegations relating to corrupt practices were made in the election petition, the petitioner in the course of trial has conﬁ ned to the corrupt practices alleged by him with reference to the video clipping that was spread through Whatsapp and YouTube. The petitioner has not produced any independent witness to prove corrupt practices as seen through the video. However, a Compact Disc with the video clipping that got spread in the social platform, is produced before this Court. This Court has seen the video with audio. On seeing the video, the case of the petitioner as seen in the election petition involving a lady by name Mrs.Saveetha Arunprasad, is true. As against the speciﬁ c allegations that the 3rd respondent through his associates started bribing the electors and about the registration of an FIR against the said Saveetha Arunprasad for distribution of money to voters, the 3rd respondent in his counter, has stated that mere association of Mrs.Saveetha Arunprasad with his father or himself, will not lead to an inference that corrupt practices were indulged with the consent of the 3rd respondent.

(57) The learned counsel for the petitioner submitted that the association, as stated by the petitioner in the election petition, would only mean that persons have joined together with a common object. In other words, the learned counsel, in his 48 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

written argument, referring to the dictionary meaning of the word "association", has submitted that the phrase used by the petitioner plays a signiﬁ cant role as the 3rd respondent has categorically admitted that Mrs.Saveetha Arunprasad as his associate. Since the word "association" was used by the petitioner, that the 3rd respondent had acted in association with Mrs.Saveetha Arunprasad and others, the argument is that it should be understood that a speciﬁ c allegation is made to the eﬀect that the 3rd respondent bribed electors through his associates with his consent and therefore, the admission of association of Mrs.Saveetha Arunprasad by 3rd respondent should be understood that the associates of 3rd respondent were acting with the consent of 3rd respondent without any ambiguity to bribe electors for the purpose of 3rd respondent's win. This argument which is based on assumption with confused jargon, cannot be appreciated in an election petition.

(58) The learned counsel for the petitioner pointed out that the 3rd respondent has not let in any evidence to show that Mrs.Saveetha Arunprasad is not an agent appointed by him or by his Chief Agent. The petitioner, during his examination, has speciﬁ cally stated that the 3rd respondent's associates distributed money to voters. The petitioner has also ﬁ led a copy of the FIR in crime No.215/2019 in relation to the incident as seen from the Video Compact Disc containing the video of the episode pleaded by the petitioner. On seeing the VCD marked as Ex.P9, this Court is of the view that the voters were given money to vote for 'two leaves' symbol. The fact that contents of VCD has spread through social media, is not disputed by the 3rd respondent. The involvement of Mrs.Saveetha Arunprasad in the distribution of money among voters in the Theni Parliamentary Constituency may also be true.

(59) The 3rd respondent has admitted during his cross examination that Mrs. Saveetha Arunprasad is seen with 3rd respondent in a few photographs. The 3rd respondent admitted that Mrs.Saveetha Arunprasad is an active member of AIADMK party and holding currently the post of Chairperson of Melachokkanathapuram. CW4, who registered the FIR in crime No.215/2019 in Ex.P7 in connection with the incident, has given evidence regarding the FIR. The original of the FIR has been ﬁ led before the Judicial Magistrate, Bodinaickenoor. He acknowledged the receipt of written complaint in respect of FIR and spoken about the receipt of VCD along with the written complaint. He has admitted that the video which was given along with complaint, was produced as evidence before the Judicial Magistrate, Bodi. He also admitted the fact that he arrested Mrs.Saveetha Arunprasad who is the ﬁ rst accused in Crime No.215/2019. He also admitted about the Final Report ﬁ led by him. However, during cross examination by the 3rd respondent, CW4 admitted that he did not know about the person who shot the video and that he was informed by the Village Administrative Oﬃ cer that he got the video through Whatsapp. This Court is unable to ﬁ nd much discrepancy in the evidence of CW4 during cross examination and his evidence of course, reveals only the fact that there was a complaint about corrupt practices and the video circulated through social media is produced before the Court and the criminal case is pending trial.

(60) The 3rd respondent admitted that the father of Mrs.Saveetha Arunprasad is holding the position in the party and Mrs.Saveetha Arunprasad was the Chairperson of Melachokkanathapuram Town Panchayat between 2011- 2016. When a speciﬁ c question was put to 3rd respondent, whether Mrs.Saveetha Arunprasad is a polling 49

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

agent for Bodinaickenoor segment, the 3rd respondent has stated "I do not know". The relevant questions and answers are extracted below for convenience:-

Q: Are you aware that each candidate can appoint two

polling agents for each polling station of the Constituency?

A: Yes.

Q: Is it correct to state that Bodi segment had 298 polling

stations in Theni Parliamentary Constituency?

A : I do not know the exact number.

Q: I put it to you that your chief election agent appointed

Savitha as your polling agent for Bodi segment.

A: I do not know.

Q: Are you aware that a candidate can appoint 14 EVM

counting agents and 2 postal ballot counting agents at the

counting centre on the day of counting?

A: I do not remember what was the procedure during the

2019 elections.

Q: Who had appointed the aforesaid counting agents on

the counting day for you?

A: I have to ask my chief election agent.

(61) It is true that the 3rd respondent was evasive. However, the petitioner has nowhere in the petition or evidence stated that Mrs.Saveetha Arunprasad was an agent of 3rd respondent either appointed by the 3rd respondent or by his chief agent. However, it is stated in the petition that Mrs.Saveetha Arunprasad was bribing electors with the consent of 3rd respondent and his election agents.

(62) Section 123 of the Representation of People Act, 1951, reads as follows:-

123. Corrupt practices.— The following shall be deemed to

be corrupt practices for the purposes of this Act:—

(1) "Bribery" that is to say— (A) any gift, oﬀer or promise by

a candidate or his agent or by any other person with the consent of

a candidate or his election agent of any gratiﬁ cation, to any person

whomsoever, with the object, directly or indirectly of inducing—

(a) a person to stand or not to stand as, or [to withdraw or not to

withdraw] from being a candidate at an election, or (b) an elector to

vote or refrain from voting at an election, or as a reward to— (i) a

person for having so stood or not stood, or for 5 [having withdrawn

or not having withdrawn] his candidature; or (ii) an elector for having

voted or refrained from voting;

(B) the receipt of or agreement to receive, any gratiﬁ cation,

whether as a motive or a reward— (a) by a person for standing

50 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

or not standing as, or for 6 [withdrawing or not withdrawing] from

being, a candidate; or (b) by any person whomsoever for himself

or any other person for voting or refraining from voting, or inducing

or attempting to induce any elector to vote or refrain from voting, or

any candidate 3 [to withdraw or not to withdraw] his candidature.

Explanation.—For the purposes of this clause the term

"gratiﬁ cation" is not restricted to pecuniary gratiﬁ cations or

gratiﬁ cations estimable in money and it includes all forms of

entertainment and all forms of employment for reward but it does

not include the payment of any expenses bona ﬁ de incurred at, or

for the purpose of, any election and duly entered in the account of

election expenses referred to in section 78.]

(2) 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:

Provided that—(a) without prejudice to the generality of the

provisions of this clause any such person as is referred to therein

who—(i) thereatens any candidate or any elector, or any person

in whom a candidate or an elector is interested, with injury of any

kind including social ostracism and ex-communication or expulsion

from any caste or community; or (ii) induces or attempts to induce

a candidate or an elector to believe that he, or any person in whom

he is interested, will become or will be rendered an object of divine

displeasure or spiritual censure, shall be deemed to interfere

with the free exercise of the electoral right of such candidate or

elector within the meaning of this clause; (b) a declaration of public

policy, or a promise of public action, or the mere exercise of a legal

right without intent to interfere with an electoral right, shall not be

deemed to be interference within the meaning of this clause 1[(3).

The appeal by a candidate or his agent or by any other person

with the consent of a candidate or his election agent to vote or

refrain from voting for any person on the ground of his religion,

race, caste, community or language or the use of, or appeal to

religious symbols or the use of or appeal to, national symbols, such

as the national ﬂ ag or the national emblem, for the furtherance of

the prospects of the election of that candidate or for prejudicially

aﬀecting the election of any candidate:

2 [Provided that no symbol allotted under this Act to a candidate

shall be deemed to be a religious symbol or a national symbol for

the purposes of this clause (3A).] The promotion of, or attempt to

promote, feelings of enmity or hatred between diﬀerent classes of

the citizens of India on grounds of religion, race, caste, community,

or language, by a candidate or his agent or any other person with

the consent of a candidate or his election agent for the furtherance

of the prospects of the election of that candidate or for prejudicially

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

aﬀecting the election of any candidate.] 3 [(3B) The propagation

of the practice or the commission of sati or its gloriﬁ cation by a

candidate or his agent or any other person with the consent of the

candidate or his election agent for the furtherance of the prospects

of the election of that candidate or for prejudicially aﬀecting the

election of any candidate. Explanation.—For the purposes of this

clause, "sati" and "gloriﬁ cation" in relation to sati shall have the

meanings respectively assigned to them in the Commission of Sati

(Prevention) Act, 1987 (3 of 1988)].

(4) The publication by a candidate or his agent or by any

other person with the consent of a candidate or his election

agent, of any statement of fact which is false, and which he either

believes to be false or does not believe to be true, in relation to the

personal character or conduct of any candidate or in relation to the

candidature, or withdrawal, of any candidate, being a statement

reasonably calculated to prejudice the prospects of that candidate's

election.

(5) The hiring or procuring, whether on payment or otherwise,

of any vehicle or vessle by a candidate or his agent or by any other

person 4 [with the consent of a candidate or his election agent] 6

[or the use of such vehicle or vessel for the free conveyance] of any

elector (other than the candidate himself the members of his family

or his agent) to or from any polling station provided under section

25 or a place ﬁ xed under sub-section (1) of section 29 for the poll:

Provided that the hiring of a vehicle or vessel by an elector or by

several electors at their joint costs for the purpose of conveying him

or them to and from any such polling station or place ﬁ xed for the

poll shall not be deemed to be a corrupt practice under this clause

if the vehicle or vessel so hired is a vehicle or vessel not propelled

by mechanical power: Provided further that the use of any public

transport vehicle or vessel or any tramcar or railway carriage by

any elector at his own cost for the purpose of going to or coming

from any such polling station or place ﬁ xed for the poll shall not be

deemed to be a corrupt practice under this clause. Explanation.—

In this clause, the expression "vehicle" means any vehicle used or

capable of being used for the purpose of road transport, whether

propelled by mechanical power or otherwise and whether used for

drawing other vehicles or otherwise.

(6) The incurring or authorising of expenditure in contravention

of section 77.

(7) The obtaining or procuring or a betting or attempting

to obtain or procure by a candidate or his agent or, by any other

person 1 [with the consent of a candidate or his election agent],

any assistance (other than the giving of vote) for the furtherance

of the prospects of that candidate's election, 2 [from any person

whether or not in the service of the Government] and belonging

52 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

to any of the following classes, namely:— (a) gazetted oﬃ cers;

(b) stipendiary judges and magistrates; (c) members of the

armed forces of the Union; (d) members of the police forces;

(e) excise oﬃ cers; 3 [(f) revenue oﬃ cers other than village revenue

oﬃ cers known as lambardars malguzars, patels, deshmukhs or by

any other name, whose duty is to collect land revenue and who are

remunerated by a share of, or commission on, the amount of land

revenue collected by them but who do not discharge any police

functions; and (g) such other class of persons in the service of the

Government as may be prescribed: 4 [Provided that where any

person, in the service of the Government and belonging to any of

the classes aforesaid, in the discharge or puported discharge of his

oﬃ cial duty, makes any arrangements or provides any facilities or

does any other act or thing, for, to, or in relation to, any candidate

or his agent or any other person acting with the consent of the

candidate or his election agent (whether by reason of the oﬃ ce

held by the candidate or for any other reason), such arrangements

facilities or act or thing shall not be deemed to be assistance for the

furtherance of the prospects of that candidate's election;]

5 [(h) class of persons in the service of a local authority, university,

government company or institution or concern or undertaking

appointed or deputed by the Election Commission in connection

with the conduct of elections.] 6 [(8) Booth capturing by a candidate

or his agent or other person.] Explanation. —(1) In this section the

expression "agent" includes an election agent, a polling agent and

any person who is held to have acted as an agent in connection with

the election with the consent of the candidate. (2) For the purposes

of clause (7), a person shall be deemed to assist in the furtherance

of the prospects of a candidate's election if he acts as an election

agent 7*** of that candidate. 8 [(3) For the proposes of clause (7),

notwithstanding anything contained in any other law, the publication

in the Oﬃ cial Gazette of the appointment, resignation, termination

of service, dismissal or removal from service of a person in the

service of the Central Government (including a person serving in

connection with the administration of a Union territory) or of a State

Government shall be conclusive proof— (i) of such appointment,

resignation, termination of service, dismissal or removal from

service, as the case may be, and (ii) where the date of taking eﬀect

of such appointment, resignation, termination of service, dismissal

or removal from service, as the case may be, is stated in such

publication, also of the fact that such person was appointed with

eﬀect from the said date, or in the case of resignation, termination

of service, dismissal or removal from service such person ceased

to be in such service with eﬀect from the said date.

(63) To attract section 123 of the Act, one should establish bribery by any gift, oﬀer or promise, by a candidate or his agent or by any person with the consent of the candidate or his election agent of any gratiﬁ cation to any person whomsoever, 53

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

with the object, directly or indirectly of inducing a person to stand or not to stand as from being a candidate at an election, or an elector to vote or refrain from voting at an election, or as a reward to a person for having so stood or not stood, his candidature; or an elector for having voted or refrained from voting.

(64) The petitioner is not serious in pressing his vague allegation regarding undue inﬂ uence. The petitioner who has alleged bribery by distributing money or gift to electors, has to establish that the gift or oﬀer or promise is by the candidate or his agent or by any person with the consent of the candidate or his election agent. In this case, there is no direct proof that Mrs.Saveetha Arunprasad is the agent of 3rd respondent or she was doing with the consent of 3rd respondent or his election agent. The petitioner himself in his evidence has stated that he did not know whether Mrs.Saveetha Arunprasad is an agent of 3rd respondent. In such circumstances, though the petitioner's case that there was bribery by a lady, it was not established with positive evidence that a lady by name Mrs.Saveetha Arunprasad has indulged in bribing the electors/voters either as an agent appointed by 3rd respondent or his chief agent or acted with the consent of 3rd respondent. Therefore, this Court is unable to hold that the petitioner has established corrupt practices as deﬁ ned under section 123 of the RP Act, 1951.

ISSUE NO [3]:-

(65) The petitioner has raised a speciﬁ c plea that Court should declare the election of 3rd respondent as void on the ground of improper acceptance of nomination of 3rd respondent.

(66) Section 100 of the RP Act, 1951, reads as follows:-

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—

54 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

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

(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 hut 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.

(67) The learned Senior counsel appearing for the 3rd respondent argued that the suppression has not materially aﬀected the result of the election. Pointing out that the 3rd respondent has won the election with huge margin of 76,000 votes, he submitted that the election of 3rd respondent in this case, cannot be declared as void on the ground of suppression. The Hon'ble Supreme Court, in the case of Sri Meirembam Prithiviraj @ Prithviraj Singh Vs. Pukhrem Sharatchandra Singh reported in 2017 [2] SCC 487, has rejected the contention of the returned candidate that under Section 100[1][d] of the RP Act,1951, that there must be proof that the result of the election was materially aﬀected by improper acceptance of nomination. Suppression is proved. As a consequence, this Court holds that nomination of the returned candidate had been improperly accepted. In view of the conclusions reached above on all issues, this Court has to allow the election petition and declare the election of the 3rd respondent / returned candidate as void.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

(68) In the result, the Election Petition in ELP.No.4/2019 is allowed and the

election of 3rd respondent / Returned Candidate on 23.05.2019 from No.33,

Theni Parliamentary Constituency is declared as null and void. No costs.

6.07.2023

Internet: Yes

Index: Yes / No

Witnesses examined on the side of Petitioner:-

PW1 - Mr. P. Milany

PW2 - Mr. Thanga Tamilselvan

List of Exhibits marked on the side of the Petitioner:-

1. Ex.P1 Extract of the Electoral Roll of Theni Parliamentary Constituency

2. Ex.P2 Certiﬁ cate u/s. 65-B pertaining to Ex.P1

3. Ex.P3 Election Aﬃ davit under Form-26

4. Ex.P4 Certiﬁ cate u/s. 65-B pertaining to Ex.P3

5. Ex.P5 Board's Report along with Audited Balance Sheet

6. Ex.P6 Certiﬁ cate u/s. 65-B pertaining to Ex.P5

7. Ex.P7 Photocopy of FIR in Cr.No.215/2019

8. Ex.P8 Certiﬁ cate u/s. 65-B pertaining to Ex.P7

9. Ex.P9 Video Compact Disc

10. Ex.P10 Certiﬁ cate u/s. 65-B pertaining to Ex.P9

11. Ex.P11 Photocopy of the Voters' List of Part 113 of Bodi Assembly

Segment

12. Ex.P12 Certiﬁ cate u/s. 65-B pertaining to Ex.P11

13. Ex.P13 Photos [4 Nos]

14. Ex.P14 Certiﬁ cate u/s. 65-B pertaining to Ex.P14

15. Ex.P15 Computer generated copy of the Sanction Letter dated

11.02.2019

16. Ex.P16 Certiﬁ cate u/s. 65-B pertaining to Ex.P15

17. Ex.P17 Computer generated copy of the Company Master Data of

Vijayanth Developers Pvt. Ltd 56 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

18. Ex.P18 Certiﬁ cate u/s. 65-B pertaining to Ex.P17

19. Ex.P19 Computer generated copy of Certiﬁ cate of Registration of

Charge dated 20.03.2019

20. Ex.P20 Certiﬁ cate u/s. 65-B pertaining to Ex.P19

21. Ex.P21 Computer generated copy of the Memorandum of Extension of

Equitable Mortgage by way of deposit of title deeds.

22. Ex.P22 Certiﬁ cate u/s. 65-B pertaining to Ex.P21

Witnesses examined on the side of Petitioner:-


	RW1 -	Mr. P. Ravindhranath

List of Exhibits marked on the side of the Respondents:-

1. Ex.R1 Print out of the Facebook Post dated 12.09.2019

2. Ex.R2 Press Report

3. Ex.R3 Return Objection of RW1

4. Ex.R4 Downloaded copy of E-mail along with attachments

5. Ex.R5 65-B Certiﬁ cate

6. Ex.R6 65-B Certiﬁ cate issued by RW1's Advocate

7. Ex.R7 Downloaded copy of Ledger Account of M/s.Vijayanth Developers Pvt.Ltd for the period from 01.04.2017 to 21.03.2019

8. Ex.R8 65-B Certiﬁ cate issued by RWl's Chartered Accountant

9. Ex.R9 Photocopy of the Share Transfer Form

10. Ex.R10 Downloaded copy of the Ledge Account

11. Ex.R11 65-B Certiﬁ cate issued by RW1's Chartered Accountant

12. Ex.R12 Downloaded copy of the Ledger Account

13. Ex.R13 65-B Certiﬁ cate issued by RW1's Auditor

14. Ex.R14 Photocopy of RW1's Income Tax Returns for the

AY 2019-20

15. Ex.R15 Photocopy of RW1's brother's Income Tax Returns for the

AY 2019-20

16. Ex.R16 Photocopy of RW1's Bank Statement for the period between

01.01.2016 and 31.03.2016.

		TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY		57
Witnesses examined on the side of Court-



	CW1		-		Mr. Joseph Jackson K.G.
	CW2		-		Mr. C.S. Govindarajan
	CW3		-		Mrs. Mariam Pallavi Baldev
	CW4		-		Mr. P. Selvaraj

List of Exhibits marked on the side of the Court Witnesses:-

1. Ex.C1 - E-Form CHG1 regarding Registration of Charge ﬁ led by

Vijayanth Developers Pvt. Ltd.

2. Ex.C2 - Certiﬁ cate generated at the time of Registration of Charge

dated 20.03.2019

3. Ex.C3 - Master Data of Vijayanth Developers Private Limited

4. Ex.C4 - E-Form No. AOC-4 Form for ﬁ ling Financial Statements &

the proceedings relating to scrutiny

9. Ex.C9 - Original Election Nomination in Form-2A of Returned

Candidate with the endorsement of the Returning Oﬃ cer

10. Ex.C10 - Original Form-26 of the Returned Candidate

11. Ex.C11 - Original Receipt of Notice to appear for allocation of election symbols with the acknowledgment of the Returned Candidate

12. Ex.C12 - Original Objection Petition ﬁ led by PW2 along with documents

13. Ex.C13 - Entire scrutiny proceedings

14. Ex.C14 - Reply of RWl on 05.04.2019

15. Ex.C15 - Supplementary Aﬃ davit dated 29.03.2019

16. Ex.C16 - Endorsement of CW3

17. Ex.C17 - Objections of Arappor Iyyakkam dated 27.03.2019

18. Ex.C18 - Notice dated 01.04.2019 issued by CW3 58 TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

19. Ex.C19 - Certiﬁ cation regarding Conﬁ rmation of Balance issued by

Mr. V.P. Jaya Pradeep

20. Ex.C20 - FIR dated 15.04.2019

21. Ex.C21 - Photocopy of the complaint

22. Ex.C22 - Photocopy of CSR Receipt

23. Ex.C23 - Copy of Final Report dated 20.04.2019

24. Ex.C24 - Certiﬁ ed copy of Final Report ﬁ led on 31.03.2022

25. Ex.C25 - Certiﬁ ed copy of 161 statements of the witnesses

[series 5 Nos.]

06.07.2023

S.S. SUNDAR, J..

Order in

ELP.No.4/2019

06.07.2023 59

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

ELP.No.4/2019

S.S. SUNDAR, J.,

After pronouncement of the order today [06.07.2023], learned Senior counsel appearing for the 3rd respondent has made a request that this Court may stay the operation of the order for a limited period of thirty days. He has also convinced this Court that this is a case in which this Court should exercise its discretion granting stay of operation of order before expiry of the time allowed for appealing.

2. The Court heard the submissions of Mr. V. Arun, learned counsel for the

election petitioner.

3. This Court is inclined to pass the following order:-

"The order pronounced by this Court today [06.07.2023], shall not be in

operation for a period of thirty days from today."

06.07.2023

Internet: Yes

(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 25th August, 2023. Principal Secretary to Government,

Public (Elections) Department.

PRINTED AND PUBLISHED BY THE DIRECTOR OF STATIONERY AND PRINTING, CHENNAI ON BEHALF OF THE GOVERNMENT OF TAMIL NADU