[ 1 ]

DTP—V-4 Ex.(341)—1

TAMIL NADU

GOVERNMENT GAZETTE

EXTRAORDINARY PUBLISHED BY AUTHORITY

No. 341] CHENNAI, TUESDAY, SEPTEMBER 19, 2023

Purattasi 2, Sobakiruthu, Thiruvalluvar Aandu–2054

Part V—Section 4

Notifications by the Election Commission of India

[Regd. No. TN/CCN/467/2012-14.

GOVERNMENT OF TAMIL NADU

[R. Dis. No. 197/2009.

2023

[Price : Rs. 7.20 Paise.

NOTIFICATIONS BY THE ELECTION COMMISSION OF INDIA

JUDGEMENT OF THE HIGH COURT OF MADRAS IN ELECTION

PETITION No. 03 OF 2016

No. SRO G-29/2023.

The following Notification of the Election Commission of India, Nirvachan Sadan,

Ashoka Road, New Delhi-110 001, dated 28th August, 2023 [ 6 Bhadra 1945 (Saka)]

is published:-

No.82/TN-LA/(EP 03 of 2016)/2023:- In pursuance of section 106 (b) of the

Representation of the People Act, 1951 (43 of 1951), the Election Commission

hereby publishes the Order of the Hon’ble High Court of Madras dated 05.06.2023

in Election Petition No. 03 of 2016.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION)

MONDAY, THE 5TH DAY OF JUNE 2023

THE HON’BLE MR. JUSTICE M.S.RAMESH

Election Petition No.3 of 2016

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

S.M.Nasar,

No. 16, Thayagam Illam,

Budhhar Street,

Kamarajar Nagar,

Avadi,

Chennai - 600 071.

... Petitioner

-VS-

1. Pandia Rajan K.

61/-TAS Enclave,

Flat No.C3, 3rd Floor,

Golden Kings Court,

10th Main Road,

Annanagar,

Chennai - 600 040.

2. Charles S.

4/- Dr.Ambedkar Street,

Kengureddykuppam,

Thiruninravur - 602 024.

3. Loganathan J.

3-9/- Pillayar Koil Street,

Pidarithangal Village,

Paanavedu Garden,

Poonamallee,

Chennai - 600 056.

4. Anthridoss R.

3/- Govindarajulu Street,

Sri Devi Nagar,

Avadi, Chennai - 600 071.

5. Anandakrishnan N.

4/- Station Road,

Annanur,

Chennai - 600 077.

6. Nallathambi S.

37/- Mosque Street,

Pattabiram, Chennai - 600 072.

7. Ponnusamy R.

5/- Transformer Metu Street,

Thiruninravur, Chennai - 602 024.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

8. Rowoth Pasari,

3/-3rd Street, Santhipuram,

Thirumullaivoyal,

Avadi, Chennai - 600 062.

9. Antharaiyan,

198-13/- Madhakoil Street,

Monnavedu, Melannur,

Tiruvallur,

Pincode - 627 027.

10. Karthikeyan V.P.

B3-35A Kendriya Vihar,

2nd PH Road,

Paruthipattu,

Avadi 600 071.

11. Kaliammal Rajendran,

3/- EVR Nagammai Nagar,

Vinayagarkoil Cross Street,

Avadi, Chennai - 600 109.

12. Sathya D.

3-Jothiramalinga Nagar,

2nd Cross Street,

Kavarapalayam,

Avadi, Chennai - 600 054.

13. Selvanayagam D.

30-2/- Thiruvalluvar Street,

Kamarajapuram, Pattabiram,

Chennai - 600 072.

14. Dharani K.

16-5/- Kadumpadi,

Nagammankoil Street,

Chattaram, Pattabiram,

Chennai - 600 072.

15. Dinesh kumar P.

3-10/- Thanneerkinaru Street,

Thandurai,

Pattabiram, Chennai - 600 072.

16. Durga Prasad G.

10-1/- Bajanaikoil Street,

Kavarapalayam,

Avadi, Chennai - 600 054.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

17. Nasar S M A

26/- Pavalakara Street,

Mannadi, Chennai - 600 001.

18. Pandiarajan G.

2/-Ramalingapuram 1st Street,

Kamarajarnagar, Avadi,

Chennai - 600 071.

19. Ramachandran J.

4/3, Annai Abirami Nagar,

Sivan Koil Road, Avadi,

Chennai - 600 077.

20. Janova J.

44/42 Mettu Street,

Sekkadu,

Avadi, Chennai - 600 071.

21. The Election Commission of India,

Represented by its Chief Election Commissioner,

Nirvachan Sadan, Ashoka Road,

New Delhi 110 001.

22. The Returning Officer,

Avadi Constituency,

Avadi Taluk Office,

Railway Station Road,

Avadi, Chennai - 600 054. **

(**Respondents 21 & 22 struck off from the array of respondents in ELP

3 of 2016 as per order of this Hon’ble court dated 11/07/2017 made in

OA.Nos.297 & 298 of 2017 in ELP No.3 of 2016**)

23. V.Muthusamy,

Returning Officer,

Avadi Constituency,

Avadi Taluk Office,

Railway Station Road,

Avadi, Chennai 600 054.

24. Muthu,

DRO Cum Election Nodal Officer for Avadi and

Poonamallee Constituency, Collectorate Office,

Tiruvallur.

...Respondents

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

This Election Petition praying that this Hon’ble Court be pleased to a) declare

the election of the 1st Respondent to the No.006 Avadi Assembly Constituency in

Tamil Nadu on 19.05.2016 as illegal and void b) declare the Petitioner as being

elected to the No.006 Avadi Assembly Constituency in Tamil Nadu c) direct the

1st Respondent to pay the cost of the petition to the Petitioner.

The Election Petition having been heard on 03/03/2023 in the presence:

of Mr.P.Wilson, Senior Counsel assisted by Mr.Richardson Wilson, Advocate for

M/s.P.Wilson Associates, advocates for the Election Petitioner; and of Mr.H.Karthik

Seshadri, Advocate for M/s.Iyer & Thomas, advocate for the 1st Respondent; and

the respondents 2 to 20, 23, 24 not appearing in person or by advocate; and upon

reading the Election Petition, Affidavit of S.M.Nasar and counter affidavit of Pandia

Rajan K filed herein and the evidence adduced herein and the exhibits marked

thereon; this court having stood over for consideration till this day and coming on

this day before this court for orders in the presence of the above said advocates and

The court made the following order:-

The petitioner challenges the declaration of the first respondent as the successful

candidate in the Elections for the State Legislature held on 16.05.2016. The first

respondent was declared as the successful candidate and the margin of difference

was about 1395 votes. The petitioner seeks a declaration that the election of the first

respondent to No.6.Avadi Assembly Constituency in the elections held on 19.05.2016

as illegal and void and consequentially declare the petitioner as the elected candidate.

The grounds on which the petitioner seeks the above declaration are that

the first respondent has indulged in corrupt practices and other electoral offences

viz., non-disclosure of actual expenses, bribery, promotion of hatred and enmity on

the grounds of caste, transportation of voters, making false statements against the

petitioner, use of official machinery for election purposes, etc. The petitioner also

claims that the election officials have indulged in several irregularities, viz., failure

to re-verify the postal ballots, discrepancies in Form 17-C and announcement about

the Prime Minister, congratulating the Former Chief Minister J.Jayalalithaa.

The substantive allegations in the petition are that the first respondent

has indulged in corrupt practices by bribing voters and failing to disclose the actual

expenses. There has been an improper rejection of votes. Appeals have been made

to the voters on communal lines, voters have been transported to the booth on the

polling day, there has been an excess expenditure of about Rs.28,00,000/-, and

Government Servants have been engaged for campaigning. The first respondent

has paid for advertisement / through digital media like bulk emails, SMS, whatsapp

messages, voice calls etc., and those expenses have been suppressed in the returns

filed before the Special Observer.

It is also claimed that the first respondent has brought thousands of men

and women from his native place, viz. Virudhunagar and those persons were staying

in rented accommodation during the period of campaign. It is alleged that they

were completely taken care of by the first respondent and the expenditure incurred

has been suppressed. It is also claimed that the first respondent had not shown

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

the expenses incurred by him in conduct of Rallies on 28.04.2016 and Go Green

Marathon on 30.04.2016, expenses incurred in paid interviews, expenses incurred

in advertisements in Newspapers, campaign expenditure incurred by engaging two-

wheelers, three-wheelers, and four-wheelers were not reflected in the expenditure

statement which would, according to the petitioner, amount to corrupt practice under

the provisions of Section 123 of the Representation of People Act. It is also claimed

that the first respondent’s men had distributed 500 rupee notes to the voters and

were caught red handed. On the above allegations, the petitioner seeks a declaration

that the election is void.

The first respondent alone is contesting the petition. He has filed a counter

denying all the allegations made in the petition, it is claimed that the entire petition is

based on surmises and conjunctures. The claims / made regarding corrupt practices

or failure on the part of the officers concerned are unsubstantiated statements lacking

in material. The claim that circulation of booth slips door to door along with letter

containing the photograph and the two-leaf symbol is denied. It is claimed that those

letters were circulated only as the part of the campaign and the claim that four lakh

copies of such letters were circulated among the voters in the constituency is false.

The first respondent would also claim that he had submitted a true and proper

account to the Election Officer and the same has been approved by the Election

Officer. Therefore, unless the petitioner is able to establish suppression of actual

expenses incurred, the first respondent cannot be held guilty of corrupt practices.

The claim that 100 pandals were erected in the constituency was also

denied. While reiterating that the actual expenses incurred have been properly

accounted for and the true and fair statement has been submitted to the officials,

the first respondent would claim that he had not hired 500 vehicles for campaign

between 28.04.2016 and 14.05.2016. Apart from denying each and every one of

the allegations made in the Election Petition regarding the corrupt practices and

non-disclosure, the first respondent has also pointed out that the Marathon that was

held on 30.04.2016 was held by an apolitical organization and as a candidate, the

first respondent had participated in the said Marathon. It is also claimed that the

petitioner was also invited for the said Marathon. The claim that paid interviews and

paid news was inserted in various Newspapers is also denied. The claim that one

Krishnamurthy and Shankar were actively distributing money to voters at Kaaduvetti

Area, on the instructions of the first respondent is also denied and it is pointed out

that registration of FIRs by themselves would not amount to proof of commission

of offence.

On the above pleadings, the following issues were framed by this Court:

Whether the election of the first respondent from No.6, Avadi

Assembly Constituency, Tamil Nadu for the 15th Tamil Nadu Legislative

Assembly, 2016 is liable to declared illegal and void on the ground of

corrupt practice within the meaning of the Representation of People

Act, 1951?

ii. Whether the first respondent and his agents, under the

consent and instructions of the first respondent, had committed

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

corrupt practices, including bribery of voters and offering illegal

gratification, during the elections for No.6, Avadi Assembly Constituency,

Tamil Nadu?

iii. Whether the first respondent has exceeded the permitted

election expenditure in contravention of Rule 90 of the Conduct of

Election Rules, 1961?

iv. Whether the first respondent has failed to submit true and

correct accounts as per Section 77 of the Representation of People

Act, 1951 with regard to the election expenditure incurred by him and

his agents, inter alia, including the expenditure incurred for holding a

Rallies; Go Green Mini Marathon; paid interviews and advertisements

in print and electronic media and campaigning through various modes

of transport?

v. Whether the first respondent is guilty of misuse of the

Government machinery during the Campaign in violation of the law

and if so, whether such misuse had vitiated the election process?

vi. Whether the first, respondent conspired with respondents

23 and 24 and brazenly manipulated the EVM Machines to favour the

first respondent?

vii. Whether the petitioner is entitled to be declared as elected

to No.6, Avadi Assembly Constituency, Tamil Nadu?

viii. Whether the Returning Officer has acted in accordance

with law?

ix. To what other relief is the petitioner entitled to?

In support of the claim made in the petition, P.Ws.1 to 8 were examined

on the side of the petitioner and the first respondent was examined as R.W.1. While

exhibits P1 to P48 were marked on the side of the petitioner, Ex.R1 was marked

during the cross-examination of P.W.1 and Ex.R2 was marked during the cross-

examination of P.W.7.

I have heard Mr.P.Wilson, learned Senior Counsel assisted by Mr.Richardson

Wilson for M/s.P.Wilson Associates, appearing for the petitioner and Mr.H.Karthik

Sheshadri, learned counsel appearing for M/s.Iyer & Thomas for the first respondent.

Respondents 21 and 22 were struck off in the array of parties by order dated

11.07.2017 and Respondents 2 to 20, 23 and 24 were absent.

10. Now that the period of office has expired, the second prayer in the petition,

viz. to declare the petitioner as the elected candidate becomes redundant. Since

allegations of corrupt practices have been made, which if found true, would have

the effect of disqualifying the first respondent from contesting future elections for a

certain period we will have to necessarily decide as to whether the petitioner has

established that the respondent is guilty of corrupt practices.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

Issue No.1:

11. In the above said factual backdrop, I will consider the issues independently.

Issue No.1 being a general issue will have to be dealt with as a last issue.

Issue No.2:

12.

The allegations of corrupt practices made in the petition are as follows:

12.1. The first of them being bribery for which reliance is placed on the fact that

500 rupee notes were found in two booklets that were abandoned by certain persons

in Kaaduvetti Area. Sending of SMS for free recharge, supply of T-shirts in Marathon,

inducement of voters by offering jobs. While Section 100(b) of the Representation

of People Act 1951, empowers this Court to declare an election to be void, if the

returned candidate is found guilty of corrupt practices, the term ‘Corrupt Practice’

itself has been defined under Section 123 of the Act. The wholesome reading of

Section 123 of the Act, would show that it is not only distribution of money to the

voters but several other violations or failures to comply with certain provisions of

the Act, would also amount to corrupt practices.

12.2. As 1 have already pointed out the corrupt practices that are alleged

are bribery that is distribution of cash to others, sending of SMS for free recharge,

distribution of T-shirts for Marathon, inducement of voters for offering jobs,

non-disclosure of expenses relating to

(i)

printing of family letters and booklets;

(ii)

erection of pandals;

(iii) engagement of vehicles for campaigning;

(iv) Motor- cycle rally;

(v) Public Meetings;

(vi) Flags;

(vii) Cutouts, hoardings and banners;

(viii) Street side dances;

(ix) Paid advertisements;

(x) Employing of persons from Virudhunagar for campaigning;

(xi) Promoting hatred and enmity on the grounds of caste;

(xii) Transportation of voters;

(xiii) Absences of the names of the printers and publishers in the campaign

material;

(xiv) Paintings and writings on walls;

(xv) Use of official machinery; and

(xvi) Making false statement against the rival candidate viz., the petitioner.

12.3. In order to prove the above allegations, the petitioner had examined

P.Ws. 1 to 8 and had produced almost 48 documents. The thrust of the claim of the

petitioner regarding distribution of cash to voters is Ex.P4 FIR and Ex.P5 complaint

and P.W.1 has also spoken about the same. Exs.P39, P41, P42, P43 and P44 are

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

the video recordings that have been produced. P.W.3 has been examined to speak

about the distribution of cash in Kaaduvetti area and Ex.P8 is the supporting FIR.

Mr.Wilson, learned Senior Counsel appearing for the petitioner would rely heavily

upon the video recordings which depict the presence of two 500 rupee notes in one

of the pamphlets that were left by a group of persons who had allegedly indulged

in distributing cash to the voters would prove beyond doubt that the first respondent

had distributed cash to voters. Ex.P4 is the First Information Report registered on

the information given by the Election Officer Mr.Muthusami.

12.4. A reading of the FIR shows that upon information, the flying squad visited

the area and found that the Motor Vehicle bearing Registration No.TN 12 L 4667

was parked there and in the said vehicle there were 65 booklets of All India Anna

Dravida Munnetra Kazhagam party and there were two 500 rupee notes kept inside

two such pamphlets. Ex.P5 is the complaint given by one Ravikumar, the said

Ravikumar has not been examined and it is not known as to what action has been

taken on the basis of the said complaint which is dated 07.05.2016. The evidence

of both P.W.1 and P.W.2 regarding distribution of cash is only hearsay evidence,

therefore the same cannot be taken as a conclusive proof. ;

12.5. As far as distribution of cash to voters is concerned, the burden of proving

such distribution is on the petitioner. The Hon’ble Supreme Court in Dhartipakar

Madan Lal Agarwal v. Rajiv Gandhi, reported in 1987 (Supp) SCC 93, has held that

the burden of proving corrupt practices is on the petitioner, who alleges such corrupt

practices. The Hon’ble Supreme Court has also pointed out that since allegations of

corrupt practices were in the nature of criminal charges, it is necessary that there

should be no vagueness in the allegations so that the returned candidate may know

the case he has to meet.

12.6. As regards distribution of cash to voters, the evidence that is available

is Exs.P4 and P8 the FIRs, the evidence of Ex.P39 the Video Recording and the

evidence of P.Ws.1 and 2. As regards the evidence of P.W.1, the entire evidence

is only hearsay and he was not present at the scene of occurrence. No doubt a

few booklets and two 500 rupee notes were seized on 11.05.2016 and there is no

evidence to show that there was actual distribution of cash to the voters. As laid

down by the Hon’ble Supreme Court, allegations relating to corrupt practices being

criminal nature require proof beyond doubt. In the absence of such proof beyond

doubt, it is not possible to conclude that the first respondent has actually engaged

in distribution of cash to voters.

12.7. The evidence of P.Ws.2 and 3 with reference to distribution of cash is

also not impressive. The available evidence both oral and documentary including

the video recordings would at best establish that two 500 rupee notes were seized

from an unclaimed vehicle belonging to one Ramachandrababu along with certain

pamphlets or propaganda material used by the first respondent in the election

campaign. That by itself, in my considered opinion, cannot be held to be sufficient

enough to conclude that the first respondent has indulged in actual distribution of

cash to the voters in the constituency. The first respondent in his evidence has

categorically denied the suggestions to the effect that he had a direct hand in

distribution of cash to the voters.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

12.8. In the light of the above discussion, Issue No.2 is answered against the

petitioner.

Issue Nos.3 and 4:

13. This issue relates to incurring of expenses over and above the permitted

limit. The petitioner would claim that the first respondent has incurred expenditure

under various heads, which has not been disclosed and if there had been a proper

disclosure of the entire expenditure, the total expenditure of the first respondent

for the election would exceed the ceiling of Rs.28,00,000/-. It is contended by the

petitioner that certain expenses which have not been disclosed or accounted for if

disclosed would exceed a sum of Rs.28,00,000/- and therefore, there has been a

deliberate non-disclosure of the expenses.

13.1. As regards non-disclosure of expenses or excess election expenditure,

the learned Senior Counsel for the petitioner would contend that the cost of printing

of the letters with booth slips which have been marked as Ex.P1 and the pamphlets

which have been marked as Ex.P2 has not been accounted for. It is also claimed

that the expenses incurred in the conduct of the Go Green Marathon held on

30.04.2016 and the expenses incurred in the conduct of the Motor Cycle rallies

were not properly accounted for, which would, according to the petitioner, amount

to suppression of actual expenses over and above the permitted limit, which again

would be a corrupt practice under Section 123(6) of the Representation of People

Act.

13.2. In support of the said contention, Mr.P.Wilson, learned Senior Counsel

appearing for the petitioner would rely upon the judgment of the Hon’ble Supreme

Court in Shri Kanwar Lal Gupta v. Amar Nath Chawla and Others, reported in

(1975) 3 SCC 646, wherein the Hon’ble Supreme Court had held that a reasonable

interpretation would be, to include the expenditure incurred by the political party, who

sponsors the candidate as well as the friends and well-wishers of the candidate, in

the total expenditure and if any other interpretation is suggested, it would do violence

to the provisions of the Act and render the very fixation of the limit of expenditure

otiose.

13.3. Mr.H.Karthik Seshadri, learned counsel appearing for the first respondent

would draw my attention to the accounts submitted by the first respondent which

have been marked as Ex.P48, to contend that the expenses incurred in printing of

Ex.P1 letters have been shown in the accounts as cost incurred in printing family

letters. He would also contend that the Marathon was organized by NGO and it was

not in the course of the campaign of the first respondent, the first respondent was

only invited as a contesting candidate. The expenses incurred by the first respondent

have been verified by the Election Officers and the same has been certified and

nothing amiss has been found.

13.4. Mr.P.Wilson, learned Senior Counsel appearing for the petitioner would

also draw my attention to the judgment of the Hon’ble Supreme Court in Common

Cause (A Registered Society) v. Union of India and others, reported in (1996)

2 SCC 752, to underscore his contention that the contestant must make a true

and faithful declaration of the expenditure incurred by him and the party which has

nominated him.

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13.5. Contending Contra, Mr.H.Karthik Seshadri learned counsel appearing for the

first respondent would submit that mere non-disclosure of the expenditure would not

amount to corrupt practice. He would further submit that in Dhartipakar Madan Lal

Agarwal v. Rajiv Gandhi, reported in 1987 (Supp) SCC 93, the Hon’ble Supreme

Court had held that any voluntary expenses incurred by a political party, well-wishers,

sympathizers or association of persons would not fall within the mischief of Section

123(6) of the Act. He would also submit that in order to bring a non-disclosure as

a corrupt practice as contemplated under Sections 77 and 123(6), it is necessary

for the petitioner to plead requisite facts showing authorisation or undertaking of

reimbursement by the candidate or his election agent. Relying heavily upon the said

judgment, the learned counsel would contend that a mere omission to declare certain

expenses incurred by some other person would not amount to corrupt practice.

13.6. The learned counsel for the first respondent would also draw my attention

to the judgment of the Hon’ble Supreme Court in Kamalnath v. Sudesh Verma,

reported in (2002) 2 SCC 410, wherein the Hon’ble Supreme Court had held that

mere non-disclosure of the expenditure will not amount to corrupt practice, unless

it is shown that the expenditure incurred is over and above the prescribed limit

and the excess expenditure must be incurred by the candidate or by any person

authorised by the candidate or his election agent. In other words, an expenditure

incurred by a third person who is not authorised by a candidate or who is not an

election agent of the candidate, will not be a corrupt practice within the ambit of

Section 123(6) of the Act.

13.7. A reading of the above judgment of the Hon’ble Supreme Court would show

that in order to make non-disclosure a corrupt practice, the petitioner who seeks to

establish corrupt practice should be able to prove that the expenditure was incurred

by a person authorised and the expenditure if included in the total expenditure of

the candidate would exceed the limit prescribed. No doubt considerable effort has

been made by the petitioner to establish the above two key factors, unfortunately for

the petitioner, the link between the person who is said to have incurred expenditure

and the first respondent has not been established. While the petitioner claims that

Exs.P1 and P2 had been distributed throughout the constituency and puts the

expenses incurred by the first respondent for having printed exhibits P1 and P2 at

Rs. 16,90,76,610/-, there is no evidence to show that these expenses have been

actually incurred. The figure that has been given is based on the assumption and

surmises and they cannot form the basis of the conclusion to the effect that the

first respondent has in fact incurred expenses over and above the prescribed limit

and non-disclosure would amount to corrupt practice, in order to enable this Court

to declare the election as invalid.

13.8. In the light of the above discussion, both Issue Nos. 3 and 4 are answered

against the petitioner.

Issue No.5:

14. Though this issue has been framed, on the basis of the pleadings there is

no evidence to support the contention of the petitioner, none of the witnesses have

spoken about any misuse of official machinery. The counsel for the petitioner has

also not urged this ground very seriously. Hence Issue No.5 is answered against

the petitioner.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

Issue No.6:

15. This issue relates to the alleged manipulation of EVM Machines. Here again

there is no evidence in support of the same.

Issue No.7:

16. This issue does not survive in view of the lapse of time.

Issue No.8:

17. This issue relates to the conduct of the Returning Officer Mr.P.Wilson,

learned Senior Counsel appearing for the petitioner would rely upon the directions

contained in the hand book for Returning Officers, particularly Clause 15.15.5.1

which reads as follows:

“In case the victory margin is less than total number of postal

ballots received then there should be a mandatory re-verification of

all postal ballots. In the presence of Observer and the RO all the

postal ballots rejected as invalid as well as the postal votes counted

in favour of each and every candidate shall once again be verified

and tallied. The observer and the RO shall record the findings of

re-verification and satisfy themselves before finalizing the result. The

entire proceeding should be videographed without compromising the

secrecy of ballot and the video-cassette/CD should be sealed in a

separate envelope for future reference.”

17.1. Admittedly, there was no such recounting. The question is whether non-

compliance with certain directions or with certain best practices suggested in the

manual for Returning Officers could be a ground for declaring the Election as void.

The learned Senior Counsel would rely upon the judgment of the Hon’ble Supreme

Court in Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari and another,

reported in (2014) 5 SCC 312, to contend that the directions Contained in the hand

book of the Election Officers do have a statutory force and any violation thereof

would lead to the election being vitiated.

17.2. The learned counsel appearing for the first respondent, on the other hand

would contend otherwise and draw my attention to the judgments of the Hon’ble

Supreme Court in Ramesh Rout v. Rabindra Nath Rout, reported in (2012) 1 SCC

762; and Jitu Patnaik v. Sanatan Mohakud and Others, reported in (2012) 4 SCC

194. He would also draw my attention to the judgment of the Hon’ble Supreme Court

in N.Chinnasamy v. K.C.Palanisamy and Others, reported in (2004) 6 SCC 341,

to contend that the recounting cannot be ordered for the mere asking.

17.3. In Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari and another,

the Hon’ble Supreme Court was concerned with the instructions contained in the

hand book for Returning Officers particularly instruction No. 16 which dealt with

rejection of ballots. In that context, the Hon’ble Supreme Court at para 32 of the

said judgment observed that instructions contained in the hand book for Returning

Officers are binding on the Returning Officers. The question as to whether violation

of such instructions by the Returning Officers particularly with reference to recounting

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

of votes would vitiate the election was gone into by the Hon’ble Supreme Court.

No doubt, the judgment in Arikala Narasa Reddy, is that of a Larger Bench, but

I find that the judgment in Jitu Patnaik v. Sanatan Mohakud and Others, would

be more apt and relevant on the facts of the present case.

17.4. While considering the question, as to whether, a non-compliance with a

particular provision in the handbook would lead to vitiating the elections, the Hon’ble

Supreme Court after referring to the judgment of Ramesh Rout v. Rabindra Nath

Rout, held that mere non- compliance with a direction contained in the manual

will not offer a cause of action for declaring the election of the returned candidate

invalid under Section 100 (1)(d)(iv). The relevant portion of the said judgment reads

as follows:

38. In a recent decision of this Court in Ramesh Rout

V. Rabindra Nath Rout, one of us (R.M. Lodha, J.) speaking for the

Bench observed as follows:

“14….. The handbook, as it states, has been designed to

give to the Returning Officers the information and guidance

which they may need in performance of their functions; to

acquaint them with up-to-date rules and procedures prescribed

for the conduct of elections and to ensure that there is no

scope for complaint of partiality on the part of any official

involved in the election management. We shall refer to

the relevant provisions of the handbook a little later. The

handbook does not have statutory character and is in the

nature of guidance to the Returning Officers”.

39. In view of the above legal position that the Handbook

does not have statutory character and there being no non-

compliance with the provisions of the Constitution or the 1951

Act or any rules framed or orders made under 1951 Act by the

returning officer insofar as death of an independent candidate

was concerned, the averments made in paragraph 7(A) of

the election petition do not furnish any cause of action for

declaring the election of the returned candidate to be void

under Section 100(1)(d)(iv). The High Court seriously erred

in holding otherwise and ordering trial of the election petition

on the pleadings set out in paragraph 7(A).

17.5. In Ramesh Rout v. Rabindra Nath Rout, the Hon’ble Supreme Court had

held that the handbook issued to the Returning Officer does not have a statutory

corrupt act and. therefore, a mere failure to adhere to the directions contained in

the handbook without any further evidence as to the effect of such failure cannot

have the effect of vitiating the elections. Therefore, the failure on the part of the

Returning Officer to have a recount of the postal ballots cannot be a ground to

vitiate the elections.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

17.6. I am therefore, constrained to conclude that even though there is a

failure on the part of the Returning Officers to have conducted a recount of the

postal ballots, the same will not offer a ground to the petitioner to have the election

declared as void. Hence Issue No.8 is answered against the petitioner.

18. In view of the answers to Issue Nos. 2 to 8, Issue No.1 will have to be

necessarily answered against the petitioner. The Election Petition therefore will stand

dismissed. However, in the circumstances there shall be no order as to costs.

WITNESS, THE HON’BLE MR. JUSTICE SANJAY VIJAYKUMAR

GANGAPURWALA, CHIEF JUSTICE, HIGH COURT AT MADRAS AFORESAID,

THIS THE 5TH DAY OF JUNE 2023.

Sd./-

ASSISTANT REGISTRAR

Original Side - II

//Certified to be true copy//

Dated at Madras this the 20th day of June 2023.

COURT OFFICER (O.S.)

From 25th Day of September 2008 the Registry is issuing certified copies of

the Orders/Judgments/Decrees in this format.

13/06/2023

Election Petition No.3 of 2016

ORDER DATED: 05/06/2023

THE HON’BLE MR. JUSTICE

R. SUBRAMANIAN

FOR APPROVAL: 19/06/2023

APPROVED ON: 19/06/2023

Copy to:-

1. The Election Commission of India,

Nirvachan Sadan, Ashoka Road,

New Delhi.

2. The Returning Officer,

Avadi Constituency,

Avadi Taluk Office,

Railway Station Road,

Avadi, Chennai - 600 054.

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

List of the witnesses examined on the side of the Petitioner:

P.W.1

S.M.Nasar

P.W.2

Asim Raja

P.W.3

N.E.K.Murthi

P.W.4

K.P.Puratchidasan

P.W.5

Vinoth Kumar

P.W.6

S.Murthy

P.W.7

R.Vijaya Raghavan

P.W.8

V.Muthusamy

List of Exhibits marked on the side of the petitioner:

Sl. No.

Exhibits

Description of Documents

Date

Ex.P1

Original letter with booth slip

Ex.P2

Original booklet

Ex.P3

Original Envelop

Ex.P4

FIR in Crime No.806 of 2016 at T- 6 -6 Avadi

Police Station.

11.05.2016

Ex.P5 Complaint given by Advocate Mr.Ravikumar to

the Returning Officer, Avadi Constituency

07.05.2016

Ex.P6

Complaint given by Advocate Mr.Ravikumar to

the Returning Officer, Avadi Constituency

11.05.2016

Ex.P7

Letter from Returning Officer to Inspector of

Police, Avadi

07.05.2016

Ex.P8

FIR in Crime No.538 of 2016 at T-5 Thiruverkadu

Police Station.

14.05.2016

Ex.P9

News Article of Income Tax raid in AIADMK

Ward Secretary Munusamy’s House

15.05.2016

Ex.P10

News Article regarding first respondent

participating in and leading the mini

Marathon

01.05.2016

Ex.P11

Advertisement published by the first

respondent

30.04.2016

Ex.P12

Screen shot of whatsapp message sent by

AIADMK workers

15.05.2016

Ex.P13

Complaint given by Advocate Mr. K.P.

Puratchidasan to Returning Officer, Avadi

Constituency

9.05.2016

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

Sl. No.

Exhibits

Description of Documents

Date

Ex.P14

News Article about the first respondent

11.05.2016

Ex.P15

Copy of quarter page size colour advertisement

given by the first respondent

30.04.2016

Ex.P16

News Article of first respondent giving false

promise to set up I.T. Hub

14.05.2016

Ex.P17

Copy of quarter page size colour advertisement

given by the first respondent

15.05.2016

Ex.P18

Screen Shot of memes

26.04.2016

Ex.P19

Legislative Assembly Result 2016, Avadi

Constituency

Ex.P20

Notification of the Election Commission issued

by the 21st respondent.

04.03.2016

Ex.P21

Complaint given by S.M.Nasar to District Election

Officer, Avadi Constituency

19.05.2016

Ex.P22

Representation given by S.M.Nasar requesting

re-counting/re-verification of Postal votes

24.05.2016

Ex.P23

List of counting Supervisors and counting

Assistants in Avadi Constituency

Ex.P24

Final Result Sheet in Form 20 of the Avadi

Assembly Constituency

Ex.P25

Names and Party affiliation of candidates in

Avadi Constituency Form 7-A

Ex.P26

Form 17-C - Part 185

16.05.2016

Ex.P27

Form 17-C - Part 187

16.05.2016

Ex.P28

Form 17-C - Part 183

16.05.2016

Ex.P29

Form 17-C-Part 184

16.05.2016

Ex.P30

Form 17-C - Part 186

16.05.2016

Ex.P31

Photo of the first respondent in a Poster

16.04.2016

Ex.P32

Certificate

Ex.P33

Photo of wall painting done by the AIADMK

Ex.P34

Certificate

Ex.P35

Photo of the Dance Group hired by the first

respondent

Ex.P36

Certificate

Ex.P37

Photo of 4000 Two Wheelers participating in a

rally

Ex.P38

Certificate

TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY

Sl. No.

Exhibits

Description of Documents

Date

Ex.P39

Digital Video Disk

Ex.P40

Certificate

Ex.P41

Digital Video Disk

Ex.P42

Certificate

Ex.P43

Digital Video Disk

Ex.P44

Certificate

Ex.P43

Digital Video Disk

Ex.P44

Certificate

Ex.P47

Proceedings in Na.Ka.No. 1630/2016/E1

11.05.2016 from the Returning Officer, Thiruvallur,

to the Inspector, Avadi Police Station

11.05.2016

Ex.P48

accounts of election expenditure by contesting

candidates

List of the witnesses examined on the side of the respondents:

R.W. 1 K. Pandia Rajan

List of Exhibits marked on the side of the respondents:

Exhibits

Description of Documents

Date

Ex.R1

FIR in Crime No.805 of 2016

11.05.2016

Ex.R2

FIR in Crime No.812 of 2016

15.05.2016

Sd./-

ASSISTANT REGISTRAR

Original Side - II

(By Order)

Malay Mallick,

Principal Secretary,

Election Commission of India.

Secretariat,

SATYABRATA SAHOO,

Chennai-600 009,

Chief Electoral Officer and

19th September, 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