[ 1 ]
DTP—V-4 Ex.(96)—1
TAMIL NADU
GOVERNMENT GAZETTE
EXTRAORDINARY PUBLISHED BY AUTHORITY
No.96]
CHENNAI, THURSDAY, MARCH 7, 2024
Maasi 24, Sobakiruthu, Thiruvalluvar Aandu–2055
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.
2024
[Price : Rs. 24.80 Paise.
NOTIFICATIONS BY THE ELECTION COMMISSION OF INDIA
JUDGEMENT OF THE HIGH COURT OF MADRAS IN ELECTION
PETITION No. 10 OF 2021
No. SRO G-2 /2024.
The following Notification of the Election Commission of India, Nirvachan Sadan,
Ashoka Road, New Delhi-110 001, dated 30th January, 2024 [10 Magha,1945 (Saka)]
is published:-
No.82/TN/ (EP 10 of 2021)/2024: – 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 22.12.2023 in Election
Petition No. 10 of 2021.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION)
FRIDAY, THE 22ND DAY OF DECEMBER, 2023
THE HON’BLE MR. JUSTICE M.DHANDAPANI
Election Petition No. 10 of 2021
AND
OA.Nos.620 of 2021 & 632 of 2022
2
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
ELP No. 10 of 2021:-
S.K.Vetharathinam,
S/o. Kailasam,
No.61, Sammanthankadu,
Thethakudi South,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 809.
… Petitioner
-VS-
1. O.S.Manian,
No.5/54, Karaivaikkal, Nallur Road,
Oradiyampulam, Thalainayiru,
Vedaranyam Taluk, Nagapattinam District,
Tamil Nadu – 614 712.
2. R.Panneerselvam,
No.3, Keezha Street,
North Palpannaicherry,
Nagoor, Nagapattinam Taluk,
Nagapattinam District,
Tamil Nadu – 611 002.
3. P.S.Arumugam,
No.1/47, Main Road,
Pranthiyankarai,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 716.
4. K.Rajendran,
No.3/48, Pidagaivanavan,
Magadevimelakkaduvellappallam (Post),
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 611 112.
5. Dr.T. Sundaravadivelan,
No.56, ADM College Road,
Cooks Road, Vellipalayam,
Nagapattinam District, Tamil Nadu – 611 001.
6. Mohamed Ali,
No.510/3, Periyar Nagar,
Avinangudi, Kodikalam,
Thittakudi Taluk,
Cuddalore District, Tamil Nadu – 606 106.
3
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
7. R.Ramamurthy,
No.3/342, Krishnan Street,
Pushpavanam, Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 614 809.
8. T.Ramajayam,
No.4/127, Kamaraj Nagar,
Ayakkaranpulam-3,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 707.
9. R.Kathirvel,
No.1/551, Manmathan Koil Theru,
Kovilpathu(PO),
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 611 112.
10. P.V. Theenathayalan,
No.3/208, Thannikottagam South(PO),
Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 614 716.
11.V.Veerakumar,
No.4/53, Therkkukattalai,
Rajapuram Maruthur North Sethi,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 806.
12. *The Election Commission of India,
Represented by its Chief Election Commissioner,
Nirvachan Sadan, Ashoka Road, New Delhi – 110 001.
13. The Chief Electoral Officer, Tamil Nadu,
Election Commission of India,
Public (Elections) Department,
Secretariat, Fort St.George,
Chennai – 600 009.
14. The District Collector Cum District Returning Officer,
District Collector Officer,
Nagapattinam District, Tamil Nadu – 611 003.
15. The Returning Officer,
165, Vedaranyam Assembly Constituency,
Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 614 810.*
4
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
16. D.Duraimurugan,
The Returning Officer/Revenue Divisional Officer (RDO),
165, Vedaranyam Assembly Constituency,
Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 614 810.
17. *DRO Cum Election Nodal Officer,
165, Vedaranyam Assembly Constituency,
District Collector Office,
Nagapattinam, Tamil Nadu – 611 003.*
... Respondents
(*Respondents 12 to 15 and 17 has been struck off from Respondents in ELP.
No.10 of 2021 as per Order of this Court dated 14/12/2021 made in O.A.No.638 of
2021)
The Election Petition praying that this Hon’ble Court be pleased to
a) Declare the election of the 1st Respondent to the 165 – Vedaranyam
Assembly Constituency in Tamil Nadu on 02.05.2021 vide certificate of
Election dated 02.05.2021 as illegal and ab initio void and liable to be set
aside b)Declare the Petitioner as being duly elected to the 165-Vedaranyam
Assembly Constituency in Tamil Nadu with effect from 02.05.2021 c)Direct the
1st Respondent to pay the cost of the petition to the Petitioner.
OA.No. 620 of 2021:-
O.S. Manian,
No.5/54, Karaivaikkal, Nallur Road,
Oradiyampulam,
Thalainayiru,
Vedaranyam Taluk, Nagapattinam District,
Tamil Nadu – 614 712.
...Applicant/1st Respondent
-VS –
1. S.K.Vetharathinam,
S/o. Kailasam,
No.61, Sammanthakadu,
Thethakudi South,
Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 614 809.
1st Respondent/Petitioner
2. R.Panneerselvam,
No.3, Keezha Street,
North Palpannaicherry,
Nagoor, Nagapattinam Taluk,
Nagapattinam District, Tamil Nadu – 611 002.
3. P.S.Arumugam,
No.1/47, Main Road,
Pranthiyankarai,
Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 614 716.
5
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
4. K.Rajendran,
No.3/48, Pidagaivanavan,
Magadevimelakkaduvellappallam (Post),
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 611 112.
5. Dr.T.Sundaravadivelan,
No.56, ADM College Road,
Cooks Road, Vellipalayam,
Nagapattinam District,
Tamil Nadu – 611 001.
6. Mohamed Ali,
No.510/3, Periyar Nagar,
Avinangudi, Kodikalam,
Thittakudi Taluk,
Cuddalore District,
Tamil Nadu – 606 106.
7. R.Ramamurthy,
No.3/342, Krishnan Street,
Pushpavanam, Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 809.
8. T.Ramajayam,
No.4/127, Kamaraj Nagar,
Ayakkaranpulam-3,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 707.
9. R.Kathirvel,
No.1/551, Manmathan Koil Theru,
Kovilpathu (PO),
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 611 112.
10. P.V. Theenathayalan,
No.3/208, Thannikottagam South (PO),
Vedaranyam Taluk,
Nagapattingam District,
Tamil Nadu – 614 716.
6
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
11. V.Veerakumar,
No.4/ 53, Therkkukattalai,
Rajapuram Maruthur North Sethi,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 806.
12. The Election Commission of India,
Represented by its Chief Election Commissioner,
Nirvachan Sadan, Ashoka Road,
New Delhi – 110 001.
13. The Chief Electoral Officer, Tamil Nadu,
Election Commission of India,
Public (Elections) Department,
Secretariat, Fort St.George,
Chennai – 600 009.
14. The District Collector Cum District Returning Officer,
District Collector Officer,
Nagapattinam District,
Tamil Nadu – 611 003.
15.The Returning Officer,
165, Vedaranyam Assembly Constituency,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 810.*
16. D.Duraimurugan,
The Returning Officer/Revenue Divisional Officer (RDO),
165, Vedaranyam Assembly Constituency,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 810.
17. DRO Cum Election Nodal Officer,
165 Vedaranyam Assembly Constituency,
District Collector Office,
Nagapattinam,
Tamil Nadu – 611 003.
…Respondents/ Respondents
This Original Application praying that this Hon’ble Court be pleased to strike out
Paragraphs Nos.8 to 35 of the Election Petition No.10 of 2021.
7
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
OA.No. 632 of 2022:-
S. K. Vetharathinam,
S/o. Kailasam,
No.61, Sammanthakadu,
Thethakudi South,
Vedaranyarn Taluk,
Nagapattinarn District,
Tamil Nadu – 614 809.
... Applicant/Petitioner
-VS-
1. O.S.Manian,
No.5/54, Karaivaikkal, Nallur Road,
Oradiyampulam, Thalainayiru,
Vedaranyam Taluk, Nagapattinam District,
Tamil Nadu – 614 712.
2. R.Panneerselvam,
No.3, Keezha Street,
North Palpannaicherry,
Nagoor, Nagapattinam Taluk,
Nagapattinam District, Tamil Nadu – 611 002.
3. P.S.Arumugam,
No.1/47, Main Road,
Pranthiyankarai, Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 614 716.
4. K.Rajendran,
No.3/48, Pidagaivanavan,
Magadevimelakkaduvellappallam (Post),
Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 611 112.
5. Dr.T.Sundaravadivelan,
No.56, ADM College Road,
Cooks Road, Vellipalayam,
Nagapattinam District, Tamil Nadu – 611 001.
6. Mohamed Ali,
No.510/3, Periyar Nagar,
Avinangudi, Kodikalam,
Thittakudi Taluk,
Cuddalore District, Tamil Nadu – 606 106.
7. R.Ramamurthy,
No.3/342, Krishnan Street,
Pushpavanam, Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 809.
8
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
8. T.Ramajayam,
No.4/127, Kamaraj Nagar,
Ayakkaranpulam-3,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 707.
9. R.Kathirvel,
No.1/551, Manmathan Koil Theru,
Kovilpathu(Po),
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 611 112.
10. P.V. Theenathayalan,
No.3/208, Thannikottagam South (PO),
Vedaranyam Taluk,
Nagapattinpam District,
Tamil Nadu – 614 716.
11. V.Veerakumar,
No.4/ 53, Therkkukattalai,
Rajapuram Maruthur North Sethi,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 806.
12. D.Duraimurugan,
The Returning Officer/Revenue Divisional Officer (RDO),
165, Vedaranyam Assembly Constituency,
Vedaranyam Taluk, Nagapattinam District,
Tamil Nadu – 614 810.
...Respondents
This Original Application praying that this Hon’ble Court be pleased to permit
the Applicant to file a Reply statement to the Counter statement dated 05.09.2022
filed by the 1st Respondent.
This Election petition having been heard on 20/11/2023 for orders in
the presence of Mr.Richardson Wilson, Advocate for M/s. Wilson Associates
advocate for the Election Petiotioner/Applicant in OA.No.632 of 2022 herein;
Mr.T.V.Ramanujan, Senior Counsel for M/s. B.Arvind Srevatsa, Advocate for
the 1st Respondent/ Applicant in OA.No.620 of 2021 herein; and Respondents
2 to 11 and 16 not appearing in person or by advocate; and upon reading the
Petition and affidavit of S.K.Vetharathinam and Judges Summons, Affidavit
filed in OA.No.632 of 2022 and Counter Affidavit of O.S.Manian and Judges
Summons and Affidavit in OA.No.620 of 2021 filed herein; and the evidence
adduced herein and the exhibits marked thereon; and this Court having stood
over for consideration till this day and coming on this day before this Court
for orders in the presence of the above said advocates, and this court having
9
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
observed that the petitioner has not established the ingredients found in
Section 100(1)(b) and 100(1)(d) so as to term the acts of the 1st respondent
as corrupt practice as provided for u/s 123(1), (2), (3), (6) and (7) of the Act
and all the allegations are mere allegations without there being any proper
evidence substantiating and corroborating the same and in the absence of any
conclusive materials, would not partake the character of proof so as to enable
this Court to strike out the election as void, thereby, ridiculing the mandate of
the people, who had returned the 1st respondent as the successful candidate
and this Court has to necessarily submit itself to the people’s mandate when
the petitioner has not established the corrupt practice perpetrated by the 1st
Respondent through any credible and corroborative evidence and the election
petition fails and
it is ordered as follows:-
That the Election Petition No.10 of 2021 be and is hereby dismissed.
2. That the Original Application Nos. 620 of 2021 and 632 of 2022 in
ELP No.10 of 2021 be and are hereby closed.
3. That 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 22ND DAY OF DECEMBER 2023.
Sd./-
ASSISTANT REGISTRAR (OS-II)
//Certified to be true copy//
Dated at Madras this the 10th day of January 2024.
COURT OFFICER (O.S)
‘Madras High Court is issuing certified copies in this format from 17/07/2023’.
10
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
PK
08/01/2024
ELP.NO.10 OF 2021
DECREE
DATED: 22/12/2023
THE HON’BLE MR. JUSTICE
M.DHANDAPANI
FOR APPROVAL: 09/01/2024
APPROVED ON: 09/01/2024
Copy to:-
1. The Election Commission of
India, Nirvachan Sadan,
Ashoka Road, New Delhi.
2.The Chief Electoral Office
Tamil Nadu,
Election Commission of India,
Public (Elections) Department,
Secretariat, Fort St. George,
Chennai-600 009.
11
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION)
FRIDAY, THE 22ND DAY OF DECEMBER, 2023
THE HON’BLE MR. JUSTICE M.DHANDAPANI
Election Petition No.10 of 2021
AND
OA.Nos.620 of 2021 & 632 of 2022
ELP No. 10 of 2021:-
S.K.Vetharathinam,
S/o. Kailasam,
No.61, Sammanthankadu,
Thethakudi South,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 809.
… Petitioner
-VS-
1. O.S.Manian,
No.5/54, Karaivaikkal, Nallur Road,
Oradiyampulam, Thalainayiru,
Vedaranyam Taluk, Nagapattinam District,
Tamil Nadu – 614 712.
2. R.Panneerselvam,
No.3, Keezha Street,
North Palpannaicherry,
Nagoor, Nagapattinam Taluk,
Nagapattinam District,
Tamil Nadu – 611 002.
3. P.S.Arumugam,
No.1/47, Main Road,
Pranthiyankarai,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 716.
4. K.Rajendran,
No.3/48, Pidagaivanavan,
Magadevimelakkaduvellappallam (Post),
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 611 112.
12
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
5. Dr.T.Sundaravadivelan,
No.56, ADM College Road,
Cooks Road, Vellipalayam,
Nagapattinam District, Tamil Nadu – 611 001.
6. Mohamed Ali,
No.510/3, Periyar Nagar,
Avinangudi, Kodikalam,
Thittakudi Taluk,
Cuddalore District, Tamil Nadu – 606 106.
7. R.Ramamurthy,
No.3/342, Krishnan Street,
Pushpavanam, Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 614 809.
8. T.Ramajayam,
No.4/127, Kamaraj Nagar,
Ayakkaranpulam-3,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 707.
9. R.Kathirvel,
No.1/551, Manmathan Koil Theru,
Kovilpathu(PO),
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 611 112.
10. P.V. Theenathayalan,
No.3/208, Thannikottagam South(PO),
Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 614 716.
11. V.Veerakumar,
No.4/53, Therkkukattalai,
Rajapuram Maruthur North Sethi,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 806.
12. *The Election Commission of India,
Represented by its Chief Election Commissioner,
Nirvachan Sadan, Ashoka Road, New Delhi – 110 001.
13. The Chief Electoral Officer, Tamil Nadu
Election Commission of India,
Public (Elections) Department,
Secretariat, Fort St.George,
Chennai – 600 009.
13
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
14. The District Collector Cum District Returning Officer,
District Collector Officer,
Nagapattinam District, Tamil Nadu – 611 003.
15. The Returning Officer,
165, Vedaranyam Assembly Constituency,
Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 614 810.*
16. D.Duraimurugan,
The Returning Officer/Revenue Divisional Officer (RDO),
165, Vedaranyam Assembly Constituency,
Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 614 810.
17. DRO Cum Election Nodal Officer,
165, Vedaranyam Assembly Constituency,
District Collector Office,
Nagapattinam, Tamil Nadu – 611 003.
... Respondents
(*Respondents 12 to 15 and 17 has been struck off from Respondents
in ELP.No.10 of 2021 as per order of this Court dated 14/12/2021 made in
O.A.No.638 0f 2021)
The Election Petition praying that this Hon’ble Court be pleased to
a)Declare the election of the 1st Respondent to the 165 – Vedaranyam
Assembly Constituency in Tamil Nadu on 02.05.2021 vide certificate of Election
dated 02.05.2021 as illegal and ab initio void and liable to be set aside
b) Declare the Petitioner as being duly elected to the 165-Vedaranyam
Assembly
Constituency
in
Tamil
Nadu
with
effect
from
02.05.2021
c) Direct the 1st Respondent to pay the cost of the petition to the Petitioner.
OA.No. 620 of 2021:-
0 .S.Manian,
No.5/54, Karaivaikkal, Nallur Road,
Oradiyampulam, Thalainayiru,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 712.
...Applicant/1st Respondent
-VS-
1. S.K.Vetharathinam,
S/o. Kailasam,
No.61, Sammanthankadu,
Thethakudi South,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 809.
...1st Respondent/Petitioner
14
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
2. R.Panneerselvam,
No.3, Keezha Street,
North Palpannaicherry,
Nagoor, Nagapattinam Taluk,
Nagapattinam District,
Tamil Nadu – 611 002.
3. P.S.Arumugam,
No.1/ 47, Main Road,
Pranthiyankarai,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 716.
4. K.Rajendran,
No.3/48, Pidagaivanavan,
Magadevimelakkaduvellappallam (Post),
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 611 112.
5. Dr.T.Sundaravadivelan,
No.56, ADM College Road,
Cooks Road, Vellipalayam,
Nagapattinam District,
Tamil Nadu – 611 001.
6. Mohamed Ali,
No.510/3, Periyar Nagar,
Avinangudi, Kodikalam,
Thittakudi Taluk,
Cuddalore District,
Tamil Nadu 606 106.
7. R.Ramamurthy,
No.3/342, Krishnan
Street, Pushpavanam,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 809.
8. T.Ramajayam,
No.4/127, Kamaraj Nagar,
Ayakkaranpulam-3,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 707.
15
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
9. R.Kathirvel,
No.1/55 1, Manmathan Koil Theru,
Kovilpathu (PO),
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 611 112.
10. P.V. Theenathayalan,
No.3/208, Thannikottagam South(PO),
Vedaranyam Taluk,
Nagapattinam District, Tamil Nadu – 614 716.
11. V.Veerakumar,
No.4/ 53, Therkkukattalai,
Rajapuram Maruthur North Sethi,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 806.
12. The Election Commission of India,
Represented by its Chief Election Commissioner,
Nirvachan Sadan, Ashoka Road,
New Delhi – 110 001.
13. The Chief Electoral Officer, Tamil nadu,
Election Commission of India,
Public (Elections) Department,
Secretariat, Fort St.George,
Chennai – 600 009.
14. The District Collector Cum District Returning Officer,
District Collector Officer,
Nagapattinam District,
Tamil Nadu – 611 003.
15. The Returning Officer,
165, Vedaranyam Assembly Constituency,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 810.*
16. D.Duraimurugan,
The Returning Officer/Revenue Divisional Officer (RDO),
165, Vedaranyam Assembly Constituency,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 810.
16
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
17. * DRO Cum Election Nodal Officer,
165, Vedaranyam Assembly Constituency,
District Collector Office,
Nagapattinam, Tamil Nadu – 611 003.
... Respondents / Respondents
This Original Application praying that this Hon’ble Court be pleased to
strike out Paragraphs Nos.8 to 35 of the Election Petition No.10 of 2021.
OA.No.632 of 2022:-
S.K. Vetharathinam,
S/o. Kailasam,
No.61, Sammanthankadu,
Thethakudi South, Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 809.
…Applicant/Petitioner
-VS-
1. O.S.Manian,
No.5/54, Karaivaikkal, Nallur Road,
Oradiyampulam, Thalainayiru,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 712.
2. R.Panneerselvam,
No.3, Keezha Street,
North Palpannaicherry,
Nagoor, Nagapattinam Taluk,
Nagapattinam District,
Tamil Nadu – 611 002.
3. P.S.Arumugam,
No.1/ 47, Main Road,
Pranthiyankarai, Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 716.
4. K.Rajendran,
No.3/48, Pidagaivanavan,
Magadevimelakkaduvellappallam (Post),
Vedaranyam Taluk,
Nagapattinarn District,
Tamil Nadu – 611 112.
5. Dr.T.Sundaravadivelan,
No.56, ADM College Road,
Cooks Road, Vellipalayam,
Nagapattinam District,
Tamil Nadu-611 001.
17
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
6. Mohamed Ali,
No.510/3, Periyar nagar,
Avinangudi, Kodikalam,
Thittakudi Taluk,
Cuddalore District,
Tamil Nadu – 606 106.
7. R.Ramamurthy,
No.3/342, Krishnan Street,
Pushpavanam, Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 809.
8. T.Ramajayam,
No.4/127, Kamaraj Nagar,
Ayakkaranpulam-3,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 707.
9. R.Kathirvel,
No.1/55 1, Manmathan Koil Theru,
Kovilpathu(PO),
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 611 112.
10. P.V. Theenathayalan,
No.3/208, Thannikottagam South(PO),
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 716.
11. V.Veerakumar,
No.4/53, Therkkukattalai,
Rajapuram Maruthur North Sethi,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 806.
12. D.Duraimurugan,
The Returning Officer/Revenue Divisional Officer (RDO),
165, Vedaranyam Assembly Constituency,
Vedaranyam Taluk,
Nagapattinam District,
Tamil Nadu – 614 810.
...Respondents
This Original Application praying that this Hon’ble Court be pleased to permit
the Applicant to file a Reply statement to the Counter statement dated 05.09.2022
filed by the 1st Respondent.
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This Election petition having been heard on 20/11/2023 for orders in the
presence of Mr.Richardson Wilson, Advocate M/s.Wilson Associates, advocate for
the Election Petition/ Applicant in OA.No. 632 of 2022 herein; Mr.T.V.Ramanujan,
Senior Counsel for M/s.B.Arvind Srevatsa, Advocate for the 1st Respondent/
Applicant in OA.No.620 of 2021 herein; and Respondents 2 to 11 and 16 not
appearing in person or by advocate; and upon reading the Petition and affidavit
of S.K.Vetharathinam and Judges Summons, Affidavit filed in OA.No.632 of
2022 and Counter Affidavit of O.S.Manian and Judges Summons and Affidavit in
OA.No.620 of 2021 filed herein; and the evidence adduced herein and the exhibits
marked thereon; and this Court having stood over for consideration till this day
and coming on this day before this Court for orders in the presence of the above
said advocates, and
The Court made the following order:-
The hallmark of democracy is the conduct of free and fair elections. Free and
fair elections are the very foundation of democratic institutions and just as it is said that
justice must not only be done, but must also seem to be done; similarly, elections should
not only be fairly and properly held, but also seem to be so conducted as to inspire
confidence in the mind of the electors that everything has been done aboveboard and
has been done to ensure Free elections. The Representation of Peoples Act (for short
‘the Act’) envisages the manner in which the elections should be conducted, from the
time of its announcement to the declaration of results.
2. Once an election is notified, it shall not be stalled by any authority, even be it
the Court, except in exceptional circumstances and upon the declaration of results,
the parties, who were the candidates in the election, could have their grievance
ventilated only through an election petition by following the rigours of trial. The test on
the conduct of free and fair elections being a test on the mandate of the people in
the choice of their candidate, necessarily, it is incumbent upon all concerned, be it the
winner and the losers, who have lost in the election and also any other aggrieved
party to challenge the election at an early date and it is also for the Court to render its
verdict at an early date, which alone would strengthen the confidence of the voters in
the democratic process. Therefore, it becomes necessary for all the stakeholders in the
election petition to rein in all their resources to complete the case, so that the election
process attains finality, else, it would be nothing but disrespecting the mandate of
the people mandate.
3. Each and every day, a returned candidate holds the post as a Member of the
Legislative Assembly, upon being declared successful in the election, which is put to
test, his election is shrouded with suspicion and, therefore, it is the duty of the Court
to render its verdict on the election process at an early date, which would only be
the way the Court recognizes and approves the Will of the people as the supreme
power in the democracy.
4. The present case is one, which is the off-shoot of the General Elections to the
16th Tamil Nadu Legislative Assembly, 2021 (for short ‘the elections’). Notification for the
elections were notified on 26.02.2021 by the Election Commission of India. The schedule
for the elections so notified is as hereunder:-
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Commencement of Nominations
12.03.2021
Last Date for filing Nominations
19.03.2021
Date for scrutiny of Nominations
20.03.2021
Last Date for withdrawal of candidature
22.03.2021
Date of Poll
06.04.2021
Date of counting and declaration of results
02.05.2021
5. The petitioner was sponsored by the recognized political party, viz., Dravida
Munnetra Kazhagam (for short ‘DMK’) for No.165-Vedaranyam Assembly Constituency,
Nagapattinam District to contest under the symbol ‘Rising Sun’. The petitioner,
including the various respondents filed nomination on the appropriate dates, which were
accepted by the Election Commission and they were permitted to contest under the
various symbols allotted to them.
6. It is the case of the petitioner that elections to the 234 constituencies including
165-Vedaranyam Constituency on 6.4.2021 and the 1st respondent was declared as the
returned candidate on 2.5.2021, wherein the petitioner was said to have secured 66,390
votes as against 78,719 votes secured by the 1st respondent and the margin of victory
being 12,329 votes.
7. It is the case of the petitioner that the election of the 1st respondent to
165-Vedaranyam constituency (for short ‘the constituency’) is liable to be declared as
void on the ground of corrupt practices defined u/s 123 of the Representation of People
Act (for short ‘the RP Act’).
8. It is the case of the petitioner that the 1st respondent flouted and violated
many of the provisions of the RP Act and Conduct of Election Rules and various
notifications issued by the Election Commission of India, which materially affected
the result of the elections and hampered the prospects of the petitioner to win the
elections. It is the further case of the petitioner that the 1st respondent, at the material
point of time, being the Minister for Ministry of Handlooms and Textiles, Government
of Tamil Nadu, the entire Government machinery and Government servants were
rendering assistance for furthering the prospects of the 1st respondent in the elections
and all the illegalities committed by the 1st respondent were blindly turned down by
the election authorities, which materially affected the elections.
9. It is the further case of the petitioner that upon being named as the candidate
for AIADMK in the constituency, out of fear that he would be turned down by the
Will of the people and the prospect of the petitioner winning the election looming
large, with the consent, knowledge, instruction and authorisation of the 1st respondent,
the AIADMK Town Secretary, Mr.Namachivayam and the agents and party workers of
AIADMK party indulged in various corrupt practices in offering illegal gratification to the
voters by distributing cash to the tune o f Rs.2000/ – and also Horlicks bottle, worth
about Rs.240/ – throughout the constituency from 25.3.2021 to 2.4.2021, when the
Model Code of Conduct was in force and also distributed silk saree and cash to the
tune of Rs.5000/ – on the day of polling and also used the official machinery in achieving
this object.
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10. It is the further case of the petitioner that booklets with photographs of the
1st respondent along with photographs of the former Chief Minister as well as Former
Deputy Chief Minister and Former Chief Minister and General Secretary of AIADMK
party were printed, published and circulated throughout the constituency. It is the
further case of the petitioner that each booklet contains 54 pages with dimension of
20.6 cms x 13.3 cms. approximately costing Rs.200/ – per booklet, carrying colour
photographs of the party leaders and the erstwhile chief ministers. It is the case of
the petitioner that these booklets were distributed as a manual containing details of
the completed plans and developments in the constituency done by the 1st respondent
during 2016-2021. However, curiously, the name of the printer and publisher and
the number of copies printed are not mentioned in the booklet, which is in violation
of Notification dated. 25.7.2016. The booklets were distributed through the constituency
to approximately 1,92,000 voters, thereby costing about Rs.3,84,00,000/-, but the said
amount has been intentionally suppressed in the election expenditure account of the 1st
respondent, which is in violation of Section 77 of the RP Act.
11. It is the further case of the petitioner that the booklets were intentionally
distributed from 1.3.2021 to 3.3.2021 in order to deceive the voters and secure their
votes in favour of the 1st respondent. It is the further averment of the petitioner that a
huge amount was spent towards printing and distributing the booklet, which has not
been reflected in the expenditure account of the 1st respondent. The distribution of the
booklet not only materially affected the election of the 1st respondent, but is against
the provisions of the Act. It is the further averment of the petitioner that on 25.3.2021,
a complaint was filed by one M.Anbarasu, advocate of the petitioner with regard to
distribution of booklets by the 1st respondent and his agents, which expenditure has
been suppressed in the statement of election expenditure and called for enquiry to be
conducted and to take appropriate action against the 1st respondent.
12. It is the further averment of the petitioner that the excess expenditure spent
by the 1st respondent has materially affected the election of the 1st respondent and it
is further averred that had action been taken against the 1st respondent, by initiating
enquiry on the complaint, with regard to suppression of expenditure, the violations
would have come to light, which would have rendered the election of the 1st respondent
from being the successful candidate.
13. It is the further averment of the petitioner that the name and address of the
printer and publisher and the number of copies printed have also not been mentioned
in the book distributed at the instance of the 1st respondent by his agents, acting
under his consent, knowledge, instructions and authorisation. it is the further averment
of the petitioner that the printing and distribution of the booklets is in violation of the
notification dated 25.7.2016 in Ref. No.4/LET/ECI/ FUNC/JUD/SDR/2016.
14. It is the further averment of the petitioner that another booklet of 19
pages containing the pictures of the former Chief Ministers and General Secretary of
AIADMK party, and the then Chief Minister and Deputy Chief Minister were printed in
the booklet and the said booklet also contains the photograph of the 1st respondent
and the book was titled “Details of the Patta to be issued to the people residing
in temple land as per the order of the then Chief Minister Eddapadi K.Palanisamy”. It
is the further averment of the petitioner that the cost of the booklet would be roughly
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Rs.75/ – per booklet, in all costing around Rs.5,73,300/-, which amount has also not
been accounted under the election expenditure of the 1st respondent. It is the further
averment of the petitioner that the aforesaid promise to issue patta to the temple lands
is against the decision of this Court in W.P.Nos.17248/2013, etc., dated 4.11.2020. It is
the further averment of the petitioner that the above promise is a false promise made
by the 1st respondent to the people with an intention to secure votes with the help of
Government officials.
15. On 19.3.2021, Mr. M.Anbarasu, Advocate of the petitioner once again made
a complaint to the 15th respondent bringing to light the false promises made by the
1st respondent, but no action has been taken against the 1st respondent for suppression
of the election expenditure account, which is in violation of Section 77 of the Act.
16. It is the further case of the petitioner that on 9.1.2021, one V.Senthilnathan,
made a written request to the Revenue Divisional Officer u/s 6 (1) of the Right to
Information Act, seeking information regarding preparation of list of people
residing in temple lands, who will be issued with patta and the reply in this regard,
revealed that no such measures for preparation of list of people to be issued with
patta are taken by the HR & CE Department. Thus, the 1st respondent made false
promise to issue patta to the people residing in temple lands.
17. It is the further submission of the learned counsel that on the day of
polling, when the voters were waiting in the polling booths to cast their votes, the
agents of the 1st respondent issued tokens with AIADMK party symbol to each and
every voters promising to provide silk sarees, cash of Rs.5000/ – and gift hampers
after they vote for the 1st respondent and this happened in broad daylight when all
the voters were standing in the queue, which act is in clear violation of the Act
and also the Model Code of Conduct. It is the further averment of the petitioner
that though the said violation was brought to the notice of the flying squad by the
Chief Election Agent of the petitioner, which act is a clear violation of Section 123,
130 (a) and (b) of the Act and is a cognizable offence, the said act had materially
affected the election of the 1st respondent as the tokens and illegal gratification was
given to secure votes in favour of the 1st respondent with knowledge, consent and
cost to the 1st respondent.
18. It is the further averment of the petitioner that about 50,000 tokens were
printed, which cost has been suppressed in the election expenditure and the said
printing would have cost at least Rs.5,00,000/-. The issuance of token and, thereafter
the distribution of cash, sarees and other gift hamper had materially affected the
election of the 1st respondent and the nominal cost towards the silk sarees, cash and
gift hampers would work out to about Rs.47,50,00,000/-. Though the said details have
been furnished by the election agent of the petitioner, however, the said amount has
not been reflected in the election expenditure account and further the distribution of
illegal gratification played a vital role in the election process and for the success of the
1st respondent.
19. It is the further averment of the petitioner that Section 77 of the Act mandates
the candidate to maintain separate and correct accounts relating to expenditure incurred
by him and his agents with regard to the election and the said accounts have to be
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submitted to the District Election Officer appointed by the Election Commissioner.
However, the 1st respondent has not submitted the true and correct accounts as per
Section 77 of the Act as he has not disclosed the actual expenditure in printing the
aforesaid booklets, tokens and other expenditure, including giving illegal gratification to
the voters, as Table 1 under Rule 90 of the Conduct of Election Rules, 1961, provides
for a maximum expenditure by a candidate for Assembly Elections in Tamil Nadu at
Rs.30,80,000/-. However, the expenditure does not find place in the election expenditure
accounts submitted by the 1st respondent and the said act is a corrupt practice under
Section 123 (6) of the Act.
20. It is the further averment of the petitioner that an advertisement in the
newspaper criticizing the DMK party, running to four pages, was given in the
newspaper, but no permission for printing the advertisement has been obtained by
the 1st respondent. Further, the cost of the said advertisement, which would roughly be
Rs. 9,50,000/ – has not been reflected in the election expenditure of the 1st respondent.
It is the further averment of the petitioner that the newspaper advertisement was placed
in the newspapers and circulated on 5.4.2021, though the closing time for canvassing
ended at 7.00 p.m. on 4.4.2021, thereby, the 1st respondent had violated the Model
Code of Conduct and the directions of the Election Commission of India and no prior
permission was obtained. Based on the complaint given by one Rajalakshmi of Flying
Squad, FIR No.169 dated 5.4.2021 came to be registered u/s 143, 341, 188, 269
and 270 IPC and Section 126-B of the Act, which was on the basis of the telephonic
information given by Mr.Anbarasu to the Flying Squad Team.
21. It is the further averment of the petitioner that Form 12-D votes pertaining to
physically challenged voters and voters above 80 years of age, though was to be
secured in the presence of agents of all the candidates, who were contesting in the
elections, however, without following the schedule given for collecting the Form 12-D
votes, the votes were collected to the exclusion of the agents of the petitioner but with
the agent of the 1st respondent. It is the further submission of the petitioner that the
agents of the 1st respondent, with his knowledge and consent had distributed Horlicks
bottles and cash of Rs.2000/ – to the said voters, who had given their Form 12-D votes.
It is the further averment of the petitioner that the agents of the 1st respondent took the
officers in-charge for collecting Form 12-D votes to the residence of the voters, who
had received Rs.2000/ – and Horlicks bottle to secure their votes in favour of the 1st
respondent, which act played a vital role and materially affected the election results in
favour of the 1st respondent.
22. It is the further averment of the petitioner that the 1st respondent, who belongs
to AIADMK party, during his campaign in Thalaigayar Bazar on 30.03.2021 at about
9.00 p.m., had made certain allegations defaming the petitioner and promoting
hate between the community and castes stating that the petitioner is against his own
community people. The 1st respondent, had thereby, instilled and promoted hatred and
enmity between the people on the ground of caste and community to turn the people
belonging to a particular community against the petitioner and other by suggesting that
the petitioner is acting against the interest of his own community people, which act is
an electoral offence u/s 125 of the Act and had also materially affected the election.
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23. It is the further averment of the petitioner that a huge expense had been
incurred by the 1st respondent towards wall painting advertisements and wall posters
by the 1st respondent’s agents with his knowledge, consent and authorisation. It is the
further case of the petitioner that the wall paintings, other advertisements and flex
banners, containing the photograph of the 1st respondent would have approximately
costed about Rs.11,77,500/-. Further, a case was also registered for defacing the wall
of one Panneerselvam for which an FIR was registered. However, the expenditure
incurred for the wall paintings and flex banners have been suppressed in the election
expenditure account. Further, political advertisements in the electronic media have also
been resorted to by the 1st respondent, which would have cost about Rs.3,15,000/-,
which has also been suppressed, which has materially affected the election results.
24. It is the further averment of the petitioner that the agents and party
workers of the 1st respondent had distributed cash of Rs.2000/ – and Horlicks bottle
to every household in the constituency, thereby, incurring a cumulative expenditure of
about Rs.13,44,00,000/-, which vitiates the election of the 1st respondent. It is the further
averment of the petitioner that the cumulative expenditure incurred by the
1st respondent runs to about Rs.65,13,15,800/-, which has been suppressed in the
election expenditure and this act vitiates the election of the 1st respondent.
25. It is the further averment of the petitioner that without approval of the
Government or any Government Order issued, a new bus-stop and a car shed was
opened at the behest of the 1st respondent by the Government Officials, thereby, the
Government machinery was used for the purpose of canvassing for the 1st respondent.
Further, electricity had been used from the Anganwadi building without obtaining any
permission for the election meetings and campaigns of the 1st respondent, thereby
misusing the government machinery, which is in violation of Section 100 and 123 (7) of
the Act. Further, the 1st respondent, using the Government machinery and officials, had
caused hindrance to the election campaign of the petitioner in the conduct of meeting.
26. It is the further averment of the petitioner that if not for the illegal and
corrupt acts, perpetrated by the 1st respondent, as detailed above, the petitioner had a
fair and bright chance of coming out successful in the election by being declared as
the winning candidate. The huge and rampant corrupt acts of the 1st respondent had
hampered the success of the petitioner and the act of the 1st respondent is a direct
affront on the democratic election process, which, if not interfered by this Court, would
be nothing but a slur on the democratic process of election and the persons, who had
lawfully cast their votes to the petitioner would have had their right defeated. Therefore,
the present petition has been filed assailing the election of the 1st respondent.
27. Counter statement has been filed by the 1st respondent, in which it is averred
that the allegations contained in the petition, taken on its face value, does not disclose
a cause of action, much less the cause of action that is sought to be projected and
the present petition is liable to be dismissed in limine. It is the further averment of the
1st respondent that the petition does not fulfil Section 83 of the Act as the allegations
in the petition are general, vague, false, baseless and the election petition does not
contain any material facts or full particulars. It is the further averment of the
1st respondent that the pleading of the petitioner do not fall within the ambit of
material facts and the allegation of corrupt practice, as provided u/s 123 of the Act have
not been made out.
I
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28. It is the further averment of the 1st respondent that the allegations relating
to corrupt practice pleaded by the petitioner is wholly baseless and vague and that it
has hampered the election of the petitioner is wholly erroneous. Further, the allegation
that the 1st respondent had misused the government machinery and its officials are
also not made out by any materials. It is the further averment of the 1st respondent
that the evidence with regard to the petitioner gaining popularity is more based on
surmises and conjectures, assumptions and presumptions and not based on any
valid materials and, therefore, the same cannot be the basis for the Court to come to
any finding in favour of the petitioner.
29. It is the further averment of the 1st respondent that the allegation that the
1st respondent, through his agents had paid Rs.2000/ – and given a Horlicks bottle
and also paid Rs.5000/ – and a silk saree to the voters are wholly denied. Further, the
printing of a booklet containing 54 printed pages in different colours, alleged to have
approximately cost Rs.200/ – per booklet is also denied. It is the further averment of
the 1st respondent that there is no material to link the printing and circulation of the
booklet with the 1st respondent and the allegation that it has been printed and circulated
at the instance and authorisation of the 1st respondent is without any material. The
allegation that the booklet was printed at a cost of about Rs.3.84 Crores and circulated
to all the voters in the constituency is without any basis and it is mere surmise on the
part of the petitioner. It is the further averment of the 1st respondent that the allegation
of distribution of booklet at the instructions of the 1st respondent is wholly without any
basis and material and it is further averred that the 1st respondent has not violated any
notification.
30. It is the further averment of the 1st respondent that though in the election petition
the petitioner has alleged that as many as five persons had received the booklet,
alleged to have been printed and distributed by the agents of the 1st respondent,
however, only one booklet alone has been filed, which clearly shows that the names
provided in the table in the election petition is created for the purpose of the present
case and, there is no material to substantiate the same.
31. It is the further averment of the 1st respondent that though the alleged
distribution of booklet is between 1.3.2021 and 3.3.2021, however, the complaint
has been lodged on 25.3.2021, after a period of 21 days from the alleged date of
distribution. Further, the names of the persons, who are alleged to have received the
booklet are persons belonging to DMK political party and, therefore, it would be unsafe
to rely on their statement.
32. It is the further averment of the 1st respondent that insofar as the printing
and distribution of booklet containing 19 pages relating to details of patta to be issued
is concerned, the expenditure for the said booklet was not included in the election
expenditure account of the 1st respondent, as the same was not printed or distributed
with the knowledge of the 1st respondent or through the persons, authorised by the
1st respondent. When the 1st respondent has not authorised the distribution of the said
booklet, the stand of the petitioner that the said act of issuance of patta relating to
temple land is in violation of the orders of this Court, cannot be put against the 1st
respondent.
33. It is the further averment of the 1st respondent that the complaint of Anbarasu
dated 19.3.2021 is a fabricated piece of document, as the contents of the letter dated
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19.3.2021, marked as Document No.6 and the alleged contents as found in the election
petition do not tally with each other, which clearly shows that the allegations are
bereft of substantive proof and are invented only for the purpose of the present
election petition. Further, the place where the booklet, which is alleged to have been
printed by the 1st respondent, had been distributed had not been spelt out by the
petitioner, which itself shows that it is only fabricated for the purpose of the present case.
34. It is the further averment of the 1st respondent that the issuance of token to
voters, who have cast their votes, are not substantiated by any material particulars
and it is fabricated document, created for causing detriment to the 1st respondent. It is
further averred that the persons, who are said to be beneficiaries of the said tokens are
created for the purpose of the present petition and there are no other materials, which
connects the 1st respondent with the tokens.
35. It is the further averment of the 1st respondent that the distribution of silk
sarees and cash to the tune of Rs.47,50,00,000/-, as alleged by the petitioner, is based
on mere presumptions and assumptions of the petitioner and the 1st respondent had
not revealed anything in the election expenditure for the reason that such sums were
not incurred by the 1st respondent. Therefore, mere allegations, without any material
connecting the 1st respondent with the same cannot be the basis to allege corrupt
practice on the part of the 1st respondent.
36. It is the further averment of the 1st respondent that insofar as the allegation
relating to the printing of tokens to the tune of about Rs.5,00,000/-, the said allegation
is wholly based on surmises and conjectures and that the 1st respondent had been
regularly filing the accounts of the election expenses before the Election Observer,
which have been accepted to be correct and, therefore, the said allegations, being
bereft of any materials, is wholly baseless and does not merit acceptance.
37. It is the further averment of the 1st respondent that the advertisement alleged
to have been printed in the newspapers costing about Rs.9,50,000/ – is also not borne
out by any substantive material connecting the 1st respondent with the same. Further,
the allegation with regard to circulation of advertisements along with the next day
newspapers dated 5.4.2021 on the basis of which an FIR has been filed is also not
established through proper materials. Mere allegation in the absence of any proof as
to the complicity of the 1st respondent in the said act cannot be put against the 1st
respondent.
38. Similarly, the allegation with regard to procuring of votes in Form 12D to the
effect that the party agent of the 1st respondent had taken the same without the
accompaniment of the election agent of the petitioner is denied, as the said votes
were secured in the midst of the election officials and when all the election agents
of the other candidates were present. Likewise, the alleged payment of monetary
consideration to the tune of Rs.2,000/ – and Horlicks Bottle is also not supported by
any materials.
39. It is the further averment of the 1st respondent that the allegation with regard to
the 1st respondent promoting enmity on the basis of caste by portraying the petitioner
as if he is acting against the interest of his caste and community and that the said act is
an electoral offence is ex facie vexatious and false and there is no material connecting
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
the said allegation with the 1st respondent. Further, the contents of the CD, which is
placed on record to establish that the 1st respondent had made statements inciting
caste feelings amongst the community members, is not acceptable as an evidence
as it does not satisfy the necessities of Section 65 B of the Indian Evidence Act and,
therefore, is per se inadmissible.
40. It is the further averment of the 1st respondent that the allegation with regard to
the election expenditure which is excess in respect of wall paintings and flex boards,
is wholly an imagination on the part of the petitioner. The amount, which has been
arrived at by the petitioner, and alleged as not reflected in the election expenditure is
based on the surmise of the petitioner with regard to the same and the same cannot be
the basis to claim that the amount has not been reflected in the election expenditure.
41. The 1st respondent further averred that the cost towards the live shows
telecasted in television and the broadcasting expenses are not attributable to the
1st respondent and in the absence of any specific material placed, the plea that the
minimum estimate of expenditure incurred by the 1st respondent to the tune of about
Rs.65,12,15,800/ – is based on imagination of the petitioner and are not borne out
by records and that the non-revelation of the same in the election expenditure cannot
be put against the 1st respondent as the surmises of the petitioner cannot be the basis
for showing the said amount in the election expenditure, when it has not been incurred
by the 1st respondent.
42. It is the further averment of the 1st respondent that all through the election
process, the petitioner has not raised any grievance about the expenses incurred by
the 1st respondent and only upon declaration of results, being unsuccessful, based on
imagination, a vexatious claim is being made by the petitioner attacking the expenditure
and alleging corrupt practice by the 1st respondent, which is not substantiated by the
petitioner. Further, the involvement of the government officials in the election campaign
and drawing of electricity from anganwadi building, which have been alleged by the
petitioner have not been established through any documentary evidence and, therefore,
the claim of the petitioner with regard to the same does not deserve acceptance.
Therefore, it is prayed that this election petition is devoid of merits and is not maintainable
and, therefore, deserves to be dismissed.
43. At the time of admitting the election petition, the following substantial
questions of law were framed for consideration:-
i)
Whether the election of the 1st respondent from 165 – Vedaranyam
Assembly Constituency to the 16th Tamil Nadu Legislative Assembly,
2021, is liable to be declared as illegal, ab initio void and set aside?
ii)
Whether the petitioner has established the malpractices allegedly
committed by the 1st respondent u/s 123 (1)(A) (b), 123 (3-A) and
123 (7) of the Representation of Peoples Act 1951 which renders
the election liable to be set aside u/s 100 (1)(b) and (d)(ii) of the
Representation of Peoples Act and whether the said malpractices
alleged to have been committed by the 1st respondent have been
established before this Court?
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iii)
Whether the 1st respondent has suppressed the expenditure incurred
under various heads in his election accounts, thereby exceeding the
permitted election expenditure and, thus violated Rule 90 of the Code
of Conduct Rules r/w Section 77 of the RP Act thereby rendering the
election liable to be set aside u/s 100 (1) (b) & (d)(ii), (iii) and (iv) of
the RP Act?
iv)
Whether the Returning Officer has violated the directions of the
Election Commission of India with regard to conduct of polling
relating to physically challenged voters, thereby, affecting the election
and thus rendering the election of the 1st respondent to be set aside u/s
100 (1) (d) (iii) of the RP Act?
v)
Whether the election petitioner is entitled for a declaration declaring
the petitioner as being duly elected to the 165-Vedaranyam Assembly
Constituency in Tamil Nadu with effect from 2.5.2012?
44. At the time of trial, the petitioner examined himself as P.W.1 and examined
P.W.s 2 to 25 and through the witnesses, Exs.P-1 to P-44 were marked. On the side
of the 1st respondent, the 1st respondent examined himself as R.W.1. No documents
were marked on the side of the 1st respondent. The records relating to the elections
were marked as Exs.C-1 to C-21.
45. Learned counsel appearing for the petitioner submitted that the election
expenditure incurred by the 1st respondent has not been properly accounted, thereby,
there is a clear violation of the provisions of the Act, which, by itself is a corrupt
practice, which necessitates this Court to declare the election as void.
46. It is the further submission of the learned counsel that Ex.P-4 booklet had
been printed and circulated by the party functionaries and agents on the instructions
of the 1st respondent. However, the booklet, Ex.P-4, neither contains the name of the
printer/publisher and the number of copies printed, which is a clear violation of the
provisions of the Act.
47. It is the further submission of the learned counsel that the expenditure
incurred for the printing of Ex.P-4 has not been revealed in the election expenditure
relating to the 1st Respondent, which is clearly against Section 123 (6) of the Act and,
therefore, the act falls within the four corners of corrupt practice, requiring this Court
to declare the election as void.
48. It is the further submission of the learned counsel that though the expenditure
permitted for the election is about Rs.30 Lakhs and odd, however, the expenditure
relating to the printing of Ex.P-4 alone runs to about Rs. 3.84 Crores, premising that
the cost per book is placed at Rs.200/-, as the booklet has been distributed to all the
1,92,000 voters in the locality.
49. It is the further submission of the learned counsel that the distribution
of booklet between 1.3.2021 and 3.3.2021 by the agents of the 1st respondent,
under his authorisation, has been clearly deposed by P.Ws.2 and 3, which act of the
1st respondent squarely falls within Section 123 of the Act and would by itself be a
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
corrupt practice to declare the election void, as the expenditure incurred for the
said printing has not been reflected in the election expenditure submitted by the
1st respondent.
50. Further, it is the submission of the learned counsel that while the 1st respondent
has denied the printing of the booklet in his evidence before this Court, however,
the printing of the said booklet, Ex.P-4 has been admitted by the 1st respondent in
his statement to the show cause notice before the election authorities, which clearly
shows that the present deposition of the 1st respondent runs counter to the statement
given by him at the earliest point of time. Therefore, the 1st respondent, cannot, at this
distant point of time, feign ignorance to the printing of the said booklet, Ex.P-4 and its
distribution amongst the voters in the locality.
51. It is the further submission of the learned counsel that the other booklet, Ex.P-6,
outlining the grant of patta with regard to the temple lands, which has been printed and
distributed by the 1st respondent, through his agents, clearly shows that the temple lands
were sought to be divested and patta was to be issued in favour of the persons, who
have been shown as beneficiaries, notwithstanding the fact that divesting of temple lands
have been deprecated by this Court in its order and no patta could be given in respect
of temple lands. However, the said booklet has been printed only to divert the voters and
secure their votes, which act, by itself, is a corrupt practice, as it is misleading the voters
under the garb of providing them some benefit, which could not be provided.
52. It is the further submission of the learned counsel that on the day of election,
viz., 6.4.2021, the agents of the AIADMK party, to which the 1st respondent is attached,
had been distributing tokens with the symbol of the party, with a promise that those
persons, who cast the votes would be provided with a silk saree and cash on their
establishing that they had cast their vote. This act has been done with the explicit
authorisation of the 1st respondent and P.W.3 had made a complaint about the said act
to the flying squad, resulting in the registration of FIR. The act of the 1st respondent in
bribing the voters to cast votes either in his favour or against the other persons, who are
competing in the elections, is a clear violation of Section 123 (1) of the Act and renders
the election of the candidate void.
53. It is the further submission of the learned counsel that advertisements were
given in the newspapers, the cost of which has not been reflected in the election
expenditure of the 1st respondent, which is a violation of Section 123 (6) of the Act.
It is the further submission of the learned counsel that Ex.P-10 is the newspaper
advertisement and the expenses towards the same has not been revealed in the
election expenditure, which is in violation of Ex.P-12, the notification issued by the
election commission.
54. It is the further submission of the learned counsel that Form 12-D votes were
secured by the agents of the 1st respondent in connivance with the government official
without the presence of the agents of the petitioner, which is a mandatory condition
while securing Form 12-D votes. It is the submission of the learned counsel that without
informing the agents of the petitioner, the agent of the 1st respondent had obtained
the Form 12-D votes and the voters, as is evidenced from Ex.P-14, who have cast their
votes were paid Rs.2,000/ – and provided with a Horlicks Bottle, which is nothing but
an act of bribery, directly attracting Section 123 (1) of the Act.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
55. It is the further submission of the learned counsel that the 1st respondent,
in his speech to the public on 30.03.2021, had incited communal hatred amongst
the members of a particular community by portraying the petitioner as a person, who
has not done any good to the community to which he belongs. The speech of the
1st respondent is nothing but an act of inciting communal disharmony, thereby, would
fall within the four corners of corrupt practice as envisaged u/s 123 (3) and (4) of the
Act. To substantiate his submission, learned counsel drew the attention of this Court
to Ex.P-16, the text of the speech given by the 1st respondent and also Ex.P-17, the
notification of the election commission on this aspect.
56. It is the further submission of the learned counsel that the expenditure
incurred on wall paintings and flex boards have not been properly accounted for by the
1st respondent in his election expenditure. Taking this Court through the various
paintings, Ex.P-18 series and also pointing to the complaint given by the various
individuals, in whose walls, the paintings have been done, it is submitted by the
learned counsel that the said act of the 1st respondent is in gross violation of the Model
Code of Conduct and also is in violation of the provisions of Section 123 relating to
election expenditure. However, the complaints have not been properly considered by
the election commission in relation to the amount spent for the election expenditure,
which if considered properly, would have resulted in declaration of the election of the
1st respondent as void and, in turn, the petitioner, being the next successful candidate,
would have been declared as the returned candidate.
57. It is the further submission of the learned counsel that the government
officials have been misused by the 1st respondent to garner the votes in the
constituency. In support of the above, learned counsel drew the attention of this Court
to Exs.P-22, P-23 series, P-24 and P-31 to submit that projects, which have not been
approved by the Government have been inaugurated to mislead the general public
that due to the efforts of the 1st respondents the projects have been approved, though
in actuality the said projects have not been approved, which would be evident from the
reply obtained under the RTI Act, viz., Exs.P-34 and P-35. It is the further submission
of the learned counsel that this act on the part of the 1st respondent is a corrupt practice
to mislead the general public to cast their vote in his favour, which attracts the rigours
of Section 123 of the Act.
58. It is the further submission of the learned counsel that the expenditure relating
to telecast made in local cable TV by the 1st respondent has not been accounted for
in the election expenditure by the 1st respondent, which renders his candidature being
successful as void. In this regard reliance is placed on Exs.P-27 to P-29 and P-32.
Further, the misuse of electricity of the Anganwadi for the election campaign of the
1st respondent, though had been lodged as a complaint/representation by P.W.3 under
Ex.P-30, however, no action has been taken by the Election Commission, which clearly
shows that the government machinery has been misused for the personal gain of the
1st respondent.
59. It is the further submission of the petitioner that inspite of the fact that
canvassing stood closed by 6.00 p.m. on 4.4.2021, however, in a clandestine manner,
canvassing in the form of keeping advertisement pamphlets in the newspapers were
circulated by the agents of the 1st respondent throughout the constituency, with the
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
approval and on the instruction of the 1st respondent and, thereby, the 1st respondent
has violated the notifications issued by the Election Commission as also the Model
Code of Conduct, which disqualifies his candidature and, thereby, renders his election
in the said constituency as void.
60. In fine, it is the submission of the learned counsel for the petitioner, that there
is stark and glaring violations of Section 123 of the Act and the 1st respondent has not
only perpetrated corrupt practice, but has not adhered to the Model Code of Conduct
and had not followed the Notifications issued by the Election Commission from time
to time, thereby, the election of the 1st respondent to 165 Vedaranyam Constituency is
void and, therefore prays for allowing the present election petition.
61. In support of the aforesaid submissions, learned counsel for the petitioner
placed reliance on the following decisions:-
i)
Dravida Munnetra Kazhagam – Vs – UOI & Ors (W.P.No.20027/2020 –
Dated 17.03.2021);
ii)
Shivaji Balaram Baibatti – Vs – Avinash Maruthi Pawar (2018 (11) SCC 652);
iii)
Nand Kishore Lalbhai Mehta – Vs – New Era Fabrics Pvt. Ltd. & Ors.
(2015 (9) SCC 755);
iv)
Bachhaj Nahar – Vs – Nilima Mandal & Anr. (2008 (17) SCC 491):
v)
S.Subramaniam Balaji – Vs – State of TN & Ors. (2013 (9) SCC 659);
vi)
Arikala Narasa Raddy – Vs – Venkata Raman Reddygari & Anr.
(2014 (5) SCC 312)
vii)
State of M.P. – Vs – Bansilal Behari (1957 SCC Online MP 83);
viii)
Arjun Panditrao Khotkar – Vs – Kailash Kushanrao Gorantyal & Ors.
(2020 (7) SCC 1);
ix)
Harbans Singh Jalal – Vs – UOI (1997 SCC Online P&H 766):
x)
Manohar Joshi – Vs – Nitin Bhaurao Patil & Anr. (1996 (1) SCC 169);
xi)
Shiv Chand – Vs-Ujagar Singh & Ors. (1980 (2) SCC 197);
xii)
Mohinder Singh Gill & Anr. – Vs – Chief Election Commissioner
(1978 (1) SCC 405);
xiii)
Krishnamoorthy – Vs – Sivakumar & Ors. (2015 (3) SCC 467);
xiv)
Indira Nehru Gandhi – Vs – Raj Narain (1975 (Supp) SCC 1):
xv)
Common Cause (A Regd.Society) – Vs – UOI & Ors. (1996 (2) SCC 752); and
xvi)
L.R.Shivaramagowda & Ors. – Vs – T.M.Chandrashekar (Dead) by LRs & Ors.
(1999 (1) SCC 666)
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
62. Per contra, learned senior counsel appearing for the 1st respondent submitted
that the entire allegation as to the printing of Ex.P-4 and the circulation thereof by the
agents of the 1st respondent has not been established by the petitioner. It is the further
submission of the learned senior counsel that though the petitioner claims that the
booklets were printed by the 1st respondent and distributed through his agents and that
the cost of printing is not reflected in the election expenditure, yet there is to connect
the printing of Ex.P-4 to the 1st respondent.
63. It is the further submission of the learned senior counsel that is also
no material, except bald allegations from the petitioner, that the agents of the
1st respondent had distributed the books among all the voters in the constituency and that
the total cost of printing has been arrived at an imaginary figure of Rs.3.84 Crores. It
is the submission of the learned senior counsel that the petitioner has not spoken about
the names of the persons, who had distributed the booklet. In the absence of any
particulars with regard to the persons, who had distributed the booklets and enquiring
them at the time of trial with regard to the distribution of booklets, merely alleging that
the persons, who had distributed the booklets are the agents of the 1st respondent is
wholly imaginary and is woven only for the purpose of the present election petition.
64. It is the further submission of the learned senior counsel that Section
123 of the Act, in clear and unambiguous terms stipulate that acts should have been
done either by the candidate or his agent, with clear and explicit authorisation from the
candidate. Yet, there is only a mere allegation that there has been authorisation from the
1st respondent, but there is no material to infer and establish that any such authorisation
has flown from the 1st respondent to his agents for circulation of any booklet, muchless
Ex.P-4. Further, it is the clear and direct answer of R.W.1 in his deposition that he
neither has any personal knowledge about the printing and distribution of the booklets
nor the distribution of the booklet by persons, who are alleged to be agents of
the 1st respondent, under his authorisation. In the absence of the petitioner placing
any particular proof with regard to the direct involvement of the 1st respondent and
authorising his agents to distribute Ex.P-4, which is further shown to have been printed
at the instance of R.W.1, the allegation has no legs to stand.
65. It is the further submission of the learned senior counsel that the printing of
Ex.P-4 by the 1st respondent has not been established. There is only a bald allegation
that it has been printed by R.W.1 and amount to the tune of about Rs.3.84 Crores have
not been shown in the election expenditure. Neither there is any material connecting
R.W.1 with the said printing nor there is any material to show that Ex.P-4 was
distributed at the explicit authorisation of R.W.1.
66. To impress upon this Court on the aforesaid submission, learned senior
counsel drew the attention of this Court to the deposition of P.W.1, wherein to a
pointed question as to where the booklets were issued and received, there was a
hazy deposition by P.W.1 that it was Exs.P-4 and P-6 were issued to each house, viz.,
1,92,000 in the entire constituency. Further, P.W.1 has categorically deposed that he
has not witnessed the distribution of the booklet, Ex.P-4 and Ex.P-6 in person and that
complaint was given by P.W.3, his advocate.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
67. It is the further submission of the learned senior counsel that there is no
material to infer that the cost of printing a copy of Ex.P-4 is Rs.2,00/ – based on which
the value has been arrived at Rs.3.84 Crores. Merely on presumption as to the cost
of booklet, P.W.1 cannot arrive at a tentative cost when neither the printer, who has
printed the booklet has been examined, nor the person, who had placed order for
printing has been examined. It is the further submission of the learned senior counsel
that when the 1st respondent had not printed and distributed Ex.P-4, no occasion arises
for the 1st respondent to reflect the imaginary figure arrived at by the petitioner in the
election expenditure, as such an expense was not incurred by the 1st respondent.
68. It is the further submission of the learned senior counsel that irrespective of
the aforesaid factual position, the person who distributed the booklet, the person, who
received it and the person who witnessed it have not been divulged in the election
petition, but the allegation is a vague and bald allegation that the 1st respondent,
through his agents had authorised the distribution of the booklet to the persons in the
constituency and such a vague allegation cannot be the basis to declare the election
as void.
69. It is the further submission of the learned senior counsel that though P.W.4
is stated to have received the booklet, Ex.P-4 from one ilangovan in the presence of
one J.Balachandran, who is said to be the relative of P.W.4, however, the deposition of
P.W.4 in cross reveals that he belongs to DMK party, as that of the petitioner. Though
P.W.4 claims to have received the booklet on 3.3.2021 at about 3.00 p.m. however the
details of the same have not been found in the tabular column shown in the election
petition. It is the further submission of the learned senior counsel that though P.W.1
claims that the booklet was distributed to all the persons in the constituency, yet, except
for P.W.4, who belongs to the petitioner party, viz., DMK, no independent witness has
been examined to show that such a booklet was distributed by persons, who were
authorised by R.W.1. It is therefore the submission of the learned senior counsel that in
the absence of examination of any independent witness, who had received the booklet,
Ex.P-4 from the agent of AIADMK under the authorisation of R.W.1, alleging that such
distribution was under the authorisation of R.W.1 is wholly imaginary and fabricated for
the purpose of the election petition.
70. It is the further submission of the learned senior counsel that there is no
material placed by the petitioner to show that the cost of printing Ex.P-4 is Rs.200/-.
To substantiate the aforesaid submission, learned senior counsel drew the attention to
the deposition of P.W.2, wherein to a pointed question as to how P.W.2 had fixed the
cost of Ex.P-4 at Rs.200/ – for which P.W.2 had deposed that he had enquired with
the local press. This itself clearly shows that the quantum arrived at by the petitioner
with regard to the value of printing each booklet is on assumption and not supported
by any material. Further, it is the submission of the learned senior counsel that though
P.W.2 claims to be the chief election agent of P.W.1, yet, on the alleged distribution of
Ex.P-4, no complaint has been lodged by P.W.2, but after a period of 20 days, a
complaint has been lodged at the behest of P.W.3, that too without the mandatory and
requisite details.
71. It is the further submission of the learned senior counsel that P.W.3
though has deposed that he has given the complaint, Ex.P-24 on 25.3.2021 with
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
regard to the alleged distribution of Ex.P-4 on 1.3.2021, 2.3.2021 and 3.3.2021,
yet the names of the persons, who are alleged to be agents of R.W.1 and acting
under his instructions and authorisation are distributing the booklet, has not
been spelt out in Ex.P-24 nor in the affidavit to the election petition is there any
reference to the persons, who were distributing the booklet. In the absence
of any particulars with regard to the persons, who had distributed the booklet,
Ex.P-24, alleging that such distribution was at the instance of R.W.1 and under his
authorisation is wholly imaginary and made out specifically for the purpose of this
election petition.
72. It is the further submission of the learned senior counsel that R.W.1 had flatly
denied the printing and distribution of Ex.P-4 through his agents in the constituency.
In fact, the expenditure shown in Ex.C-20, even as per the deposition of R.W.1 relates
to some other booklet, which is not the issue in the present election petition and,
therefore, the petitioner cannot be allowed to change his case with regard to the said
booklet. It is the further submission of the learned senior counsel that in the cross
examination of R.W.1, the reference to Ex.P-4 has not at all been made and it has been
given a go-by, which clearly shows that the distribution of Ex.P-4 is an allegation on the
imagination of the petitioner.
73. It is the further submission of the learned senior counsel that the entries in
Ex.C-17 relating to the number of copies printed and the rate per copy, which was,
in fact, 3000 and Rs.27/ – per copy, were written in reverse, thereby meaning that
27 copies were printed at the cost of Rs.3000/ – per copy. This is a clerical error which
cannot form the basis of the election petition and the booklet, which is the subject
matter of the above, is not the booklet, which is the subject matter in issue in the
present election petition.
74. Similarly, insofar as Ex.P-6 booklet relating to issuance of patta to 7644
beneficiaries is concerned, it is the submission of the learned counsel that there is no
material placed by the petitioner to show as to who printed and distributed the booklet,
but for an allegation that it was done by the 1st respondent. It is the submission of
the learned senior counsel that allegation cannot partake the character of proof and it
is for the petitioner to establish that Ex.P-6 was in fact printed and distributed by the
1st respondent or through this agents on his specific authorisation.
75. It is the further submission of the learned senior counsel that even the
persons, five in number, who are alleged to have distributed Ex.P-6, only one person
has been examined as P.W.6, but the said witness has not spoken anything about
the distribution of Ex.P-6. Likewise the receipt of Ex.P-6 by P.W.5 is also shrouded
in mystery as P.W.5 does not reveal as to why on receiving Ex.P-6, he had handed
over the same to the cadre of DMK party, though it is claimed by P.W.5 that he is
not a member of any political party. Therefore, the testimony of P.W.5 is beyond belief.
76. It is the further submission of the learned senior counsel that even the
complaint of P.W.3, viz., Ex.P-25 only alleges that 1st respondent made false propaganda
with respect to issuance of patta relating to temple lands, though the said deposition
has been negated through Ex.C-6, the report of the Village Administrative Officer,
marked through C.W.20, which report states that there was no distribution of Ex.P-6
and that there was no such campaign.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
77. It is the further submission of the learned senior counsel that even in respect
of the tokens, Ex.P-7, it is merely an allegation of the petitioner and there are no
materials evidencing that the said tokens were distributed by the agents of the 1st
respondent under his authorisation. It is the further submission of the learned senior
counsel that the election is bereft of any materials with regard to the persons, who had
distributed the tokens, but a mere allegation is made that the tokens were distributed by
the cadre members of AIADMK. The said statement would not be suffice to bring home
the allegation that the tokens were distributed at the instance of R.W.1.
78. It is the further submission of the learned senior counsel that the evidence of
P.W.s 1 to 3 with regard to distribution of tokens are totally contradictory in nature. While
P.W.3 claims that he informed P.W.2 to lodge a complaint with the flying squad, however,
P.W.2 does not speak anything about his alleged discussion with P.W.2. Further, P.W.3
claims that FIR was registered at his instance and marked as Ex.P-9, however the
name of P.W.3 does not find place in the FIR. Further, there is no allegation about the
1st respondent being instrumental in the distribution of the tokens.
79. P.W.s 6 and 7 have been examined for the purpose of showing that bribe
was paid on receiving the tokens. Though P.W.6 claims that he went to the place and
handed over the token, however, he has deposed that he has not given any complaint.
However, the evidence of P.W.7 is interested, in that he had stated that he had
given the token to the Division Secretary of DMK, though the said individual was not
examined before the court. Further, his name does not find place either in the election
petition or in the verification or in the affidavit in Form 25.
80. It is the further submission of the learned senior counsel that Ex.P-7 was lodged
by P.W.17. However, her evidence reveal that on the date of election, viz., 6.4.2021,
when she reached the place of incident, one person from AIADMK party was caught
by the workers of DMK party alleging that he was distributing tokens, but it is the
deposition of P.W.17 that no tokens were retrieved from the possession of the said
individual. P.W.17 has further deposed that she had not seen any distribution of tokens
by the cadre members of AIADMK party.
81. It is the further submission of the learned senior counsel that with regard
to the allegation of printing and circulation of advertisement in the newspaper on
5.4.2021, Ex.P-10, the entire paper, which was circulated has not been placed and,
therefore, no reliance could be placed on Ex.P-10. Further the evidence of P.W.6, who
is an interested witness, has deposed that Ex.P-10 was not printed by Dinamalar, yet
Ex.P-10 was not shown for comparison with the other paper on which P.W.6 relies to
give the said deposition.
82. It is the further submission of the learned senior counsel that P.W.14 has
clearly stated in her deposition that she has not seized any goods or cash in this
election and the FIR in Ex.P-37, in which P.W.14 is the complainant, had stated in
cross examination that the name of the 1st respondent does not find place in Ex.P-37.
83. It is the further submission of the learned senior counsel that P.W.23, the Senior
chief Reporter of Dinamalar has deposed that Ex.P-41 is the original newspaper dated
4.4.2021 and the advertisement given therein was given by AIADMK Headquarters
and it does not speak anything about the Vedaranyam Constituency or the
1st respondent.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
84. It is the further submission of the learned senior counsel that the allegation
relating to obtaining Form 12D votes only AIADMK agents and details not provided
to the agents of the petitioner is wholly imaginary. It is the submission of the learned
senior counsel that the said allegation is spoken to by P.W.16, however, the deposition
of P.W.16 in chief and cross is shrouded with contradictions and, therefore, the said
witness is not a reliable witness, whose deposition could be believed. Though P.W.10
was examined to speak about the bribe of Rs.2000/ – and Horlicks bottle given to
the voters under Form 12-D, however, the said witness, in chief examination deposed
that he was informed that Rs.2000/ – and Horlicks bottle were given under the
instructions of the 1st respondent, however, in cross examination, has deposed that he
has not seen the distribution of money and horlicks bottle. Further the persons, who
were given the amount and horlicks bottle has also not been stated by the petitioner.
85. Placing reliance on the deposition of P.W.20, the Returning Officer, learned
senior counsel submitted that it is the categorical deposition of P.W.20 that there was
no violation in collection of ballot papers from disabled persons and voters above 80
years, brought to his notice from the respective officers. The above evidence of P.W.20
clearly shows that the allegation made by the election petitioner is an imaginary and
vexatious claim.
86. It is the further submission of the learned senior counsel that the contention
with regard to promoting communal disharmony by the 1st respondent through his
speech is not established. Further, the speech of the 1st respondent has to be taken as
a whole and a dissection of a particular passage is not permissible. The 1st respondent
has spoken about the election petitioner and his acts as a whole and it has nothing to
do with the caste or community. Further, the evidence of P.W.8, who had deposed about
recording the speech in his Samsung cellphone cannot also be trusted for the simple
reason that the said recording has not been produced before this Court and that his
name has neither been shown in the election petition nor in the verification.
87. Insofar as the wall paintings and flex boards are concerned, learned senior
counsel submitted that the deposition of P.W.1 that he has not made any complaint
between the Model Code of Conduct and till the declaration of the results is a
testimony that the present allegation is to bolster the case in the election petition.
P.W.1 has further deposed in his evidence that no complaint was made ever by the
petitioner with the Election Official or expenditure observer with regard to the above. It
is the further submission of the learned senior counsel that P.W.2, though has deposed
that the wall paintings were done at the instance of R.W.1, yet has not spoken
anything about the persons, who had done the wall paintings.
88. Similarly, the evidence of P.W.11, who is a member of the DMK party has been
projected to speak about the wall paintings, who has deposed that when enquired with
a person, named Mathiyazhagan, a member of the AIADMK party. However, P.W.11 is
an interested witness and the name of the said Mathiyazhagan has been roped in only
for the purpose of giving an impetus to the allegation and it is purely hearsay evidence
on which no reliance could be placed.
89. It is the further submission of the learned senior counsel that P.W.15, who
had given Ex.P-38 complaint, had not referenced to any particular individual, who
36
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
had done the paintings on the wall of his house. The complaint merely relates to
not whitewashing the wall and P.W.15 has categorically deposed that there is no
connection between the complaint in Ex.P-38 and the election petition.
90. Further, it is submitted that the allegation with regard to distribution of
Rs.2000/ – and one horlicks bottle to every household is a wild allegation formulated by
the petitioner without any evidence. It is further submitted that insofar as telecasting in
TV is concerned, P.W.21 has been examined, who has deposed that the telecast was
done at his instance and not at the instance of the 1st respondent and that he has not
charged any amount for the said telecast. The permission for the said telecast has also
been marked as Ex.P-40. Further, P.w.20 has deposed that he had called P.W.21 for
enquiry regarding the telecast and has further deposed that there was no violation in
the said telecast.
91. With regard to alleged utilisation of Government machinery, it is submitted that
R.W.1 has deposed that only stone laying foundation was conducted for the bus stand
and car shed and that no bus stand and car shed was opened. Pointing out to the
deposition of P.W.19 and P.W.22, it is submitted that only enter upon permission was
granted for the establishment of the car shed and bus stand and no activity had taken
place. It is the further deposition of P.W.19 that land was allotted for construction of the
bus stand by the Government.
92. Insofar as theft of electricity from Anganwadi building, it is the categorical
deposition of P.W.20 that upon the complaint of P.W.3, the same was examined and
it has been proved that nothing of that nature had happened, which is evident from
Ex.C-1 and, therefore, the stand of the petitioner with regard to theft of electricity is
wholly false. Likewise the alleged disturbances caused during the election campaign
of the petitioner, alleged by the petitioner against the 1st respondent by misusing the
Government authorities, however the same has not been proved through any proper
witnesses, who were in the thick of things at the relevant point of time and, therefore,
the allegations requires to be negatived.
93. In fine, it is the submission of the learned senior counsel that all the allegations
raised by the petitioner against the 1st respondent are mere allegations, without there
being any proper provable materials, to substantiate the same and the said allegations,
in the absence of any materials, cannot form the basis of making out the corrupt
practice, as provided for u/s 123 of the Act and the testimonies in this regard being
interested testimonies, which have not been duly supported by the testimonies of
the official witnesses and also the documentary evidence marked through the official
witnesses, the prayer of the petitioner to declare the election of the 1st respondent as
void is wholly unsustainable and the petition deserves to be dismissed.
94. In support of the aforesaid submissions, learned senior counsel for the
1st respondent placed reliance upon the following decisions:-
i) Jyoti Basu – Vs – Debi Ghosal (1982 (1) SCC 691);
ii) Dhartipakar Madan Lal – Vs – Rajiv Gandhi (1987 (Supp) SCC 93); and
iii) Mangani Lal Mandal – Vs – Bishnu Deo Bhandari (1982 (1) SCC 691) .
37
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
..
95. This Court gave its anxious consideration to the submissions advanced by
the learned counsel appearing on either side and perused the depositions of the
witnesses, as also the material documents, which have been marked and the various
decisions on the aforesaid subject, which have been placed before this Court in
support of the aforesaid submissions.
96. The present election petition seeks to declare the election of the
1st respondent as void as it is alleged that the 1st respondent has committed acts, which
are corrupt, and directly attracts Section 123 of the Act.
97. Section 100 of the Act provides the grounds on which the election of a
returned candidate can be declared as void which is quoted hereunder for better
appreciation:-
“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 qualified, or was disqualified, to be
chosen to fill 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, insofar as it
concerns a returned candidate, has been materially affected•
(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.”
98. From a careful perusal of Section 100, it transpires that sub-section (b) and
(d) of Section 100 would be the pivotal grounds on which the election of a returned
candidate could be declared as void.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
99. The whole election petition is premised on the basis that the acts of
the 1st respondent amounts to corrupt practice as provided for u/s 123 of the
Act. Therefore, it becomes necessary for this Court to advert to the ingredients of
Section 123 of the Act to find out as to what are the acts, that would fall within
the four corners of “corrupt practices”. So before embarking upon analysing the
evidence and depositions to find out the nature of the act, it would be just and
proper for this Court to advert to Section 123 of the Act, which is quoted hereunder;
“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 gratification, 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
[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 gratification,
whether as a motive or a reward –
(a) by a person for standing or not standing as, or for
[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
[to withdraw or not to withdraw] his candidature.
Explanation.-For the purposes of this clause the term
“gratification” is not restricted to pecuniary gratifications or
gratifications 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 fide incurred at, or
for the purpose of, any election and duly entered in the account of
election expenses referred to in section 78.]
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(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 {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) threatens 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
[(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 flag 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:
[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 affecting the
election of any candidate.]
[(3B)
The
propagation
of
the
practice
or
the
commission of sati or its glorification by a candidate or his agent
or any other person with the consent of the candidate or his
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
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 “glorification” 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 4[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 vessel by a candidate or his agent
or by any other person [with the consent of a candidate or his
election agent], [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 fixed 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 fixed 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 fixed 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 authorizing of expenditure in contravention
of section 77.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
7) The obtaining or procuring or abetting 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, from any person
in the service of the Government and belonging to any of the
following classes, namely:-
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces:
(e) excise officers;
[(f) revenue officers other than village revenue officers
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:
[Provided that where any person, in the service of the
Government and belonging to any of the classes aforesaid, in
the discharge or purported discharge of his official 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 office 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.]
[(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 1*** of that
candidate.]
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
[(3) For the purposes of clause (7), notwithstanding
anything contained in any other law, the publication in the Official
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.]
[(4) For the purposes of clause (8), “booth capturing”
shall have the same meaning as in section 135A.]”
100. According to the petitioner, the acts of the 1st respondent squarely attracts
sub-section (1), (2), (3), (6) and (7) of the Act. The details of the corrupt practices, that
have been alleged to have been committed by the 1st respondent have been detailed
in extensor, both in the election petition as well as at the time of submissions made on
behalf of the petitioner. In the aforesaid backdrop, this Court has to find out whether
there are substantive and acceptable materials, which unerringly point to the corrupt
practice committed by the 1st respondent so as to grant the relief of declaring the
election of the 1st respondent as void, as prayed for by the petitioner.
101. The first and foremost contention placed on behalf of the petitioner for
alleging corrupt practice is with regard to the non-disclosure of the amounts spent in
the election expenditure, which is over and above the permissible limit, as permitted
by the Election Commission and is not reflected in the election accounts, which is a
corrupt practice u/s 123 (6) of the Act.
102. The main thrust of the excess expenditure is predicated upon
Exs.P-4 and P-6, which are the booklets, which are alleged to have been printed and
distributed to all the voters in the constituency by the 1st respondent through his agents.
It is the case of the petitioner that the cost of printing of Ex.P-4 runs to about Rs.3.84
Crores and that of Ex.P-6 runs to about Rs.5,73,300/-. However, the said amounts
have not been reflected in the election expenditure, thereby, it is a corrupt practice
warranting declaration of the election of the 1st respondent as void.
103. To substantiate that Exs.P-4 and P-6 were printed and distributed amongst
the voters in the constituency, P.W.s 1 to 5 have been examined. A careful perusal of
the deposition of P.W.s 1 to 5 through their proof affidavit reveals that all of them, in
unison, have alleged that Exs.P-4 and P-6 were printed and distributed at the instance
and authorisation of R.W.1 by his agents. However, what is more crucial to be noted
here is the fact that twin ingredients are codified in Section 100 (1)(b) and 100 (1)(d)
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
of the Act for the Court to enter into the dispute and set aside the election as void. The
above said provisions have been construed by the Apex Court in Krishnamoorthy’s
case (supra) and the relevant portion is quoted hereunder:-
62. As is clear from the provision. if the corrupt practice is proven,
the Election Tribunal or the High Court is bound to declare the election
of the returned candidate to be void. The said view has been laid down
in M. Narayan Rao V. G. Venkata Reddy & Others and Harminder Singh
Jassi (supra).
63. At this juncture, it is necessary to elucidate on one essential
aspect. Section 100(1)(d)(i) stipulates that where the High Court
is of the opinion that the result of the election has been materially
affected by any corrupt practice, committed in the interest of the
returned candidate by an agent, other than his election agent, the
High Court shall declare the election of the returned candidate to
be void. This stands in contra distinction to Section 100(1)(b) which
provides that election of a returned candidate shall be declared to be
void if corrupt practice has been committed by a returned candidate
or his election agent or by any other person with his consent or
with the consent of the returned candidate or his election agent.
Thus, if the corrupt practice is proven on the foundation of Section
100(1)(b), the High Court is not to advert to the facet whether result of
the election has been materially affected, which has to be necessarily
recorded as a finding of a fact for the purpose of Section 100(1)(d)(ii).
64. In this context, we may refer to the authority in Samant N. Balkrishna
and Anr. V. George Fernandez and Others, wherein Hidayatullah,
C.J.,speaking for the Court opined thus:
“If we were not to keep this distinction in mind there would
be no difference between Section 100(1) (b) and 100(1)(d)
insofar as an agent is concerned.. We have shown above
that a corrupt act per se is enough under Section 100(1)(b)
while under Section 100(1)(d) the act must directly affect
the result of the election insofar as the returned candidate is
concerned. Section 100(1) (b) makes no mention of an agent
while Section 100(1) (d) specifically does. There must be
some reason why this is so. The reason is that an agent cannot
make the candidate responsible unless the candidate has
consented or the act of the agent has materially affected the
election of the returned candidate. In the case of any person
(and he may be an agent) if he does the act with the consent
of the returned candidate there is no need to prove the
consent of the returned candidate and there is no need to
prove the effect on the election.”
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
65. In Manohar Joshi V. Nitin Bhaurao Patil and Anr., a three• Judge
Bench reiterated the principle by stating that:
The distinction between clause (b) of sub-section (1) and
sub-clause (ii) of clause (d) therein is significant. The ground
in clause (b) provides that the commission of any corrupt
practice by a returned candidate or his election agent or by
any other person with the consent of a returned candidate or
his election agent by itself is sufficient to declare the election
to be void. On the other hand, the commission of any corrupt
practice in the interests of the returned candidate by an agent
other than his election agent (without the further requirement
of the. ingredient of consent of a returned candidate or his
election agent) is a ground for declaring the election to be
void only when it is further pleaded and proved that the result
of the election insofar as it concerns a returned candidate
has been materially affected.”
The distinction between the two provisions, as has been
explained by this Court is of immense significance. If the corrupt practice,
as envisaged under Section 100(1)(b) is established, the election has
to be declared void. No other condition is attached to it. Keeping this
in view, we are required to advert to the fundamental issue whether
non – disclosure of criminal antecedents, as has been stipulated under
Section 33A and the Rules framed under the 1951 Act, would tantamount
to corrupt practice and if so, how is it to be proven.”
104. Therefore, there are two limbs in the corrupt practice, insofar as declaring
an election of a returned candidate to be void, which operate separately and not in
tandem; the first limb being the satisfaction of Section 100 (1) (b). wherein commission
of corrupt practice by a returned candidate is proved and the second limb being
commission of corrupt practice by an agent with the authorisation of the returned
candidate or the election agent and that the said corrupt practice should be pleaded
and proved. Even if one of the conditions are fulfilled, then the election of the returned
candidate can be declared as void.
105. On the basis of the aforesaid ratio laid down with regard to corrupt practice,
this Court is required to look into the questions of law that have been framed for
consideration.
Issue Nos.2 & 3 :
Whether the petitioner has established the malpractices
allegedly committed by the 1st respondent u/s 123 (1)(A)(b),
123 (3-A) and 123 (7) of the Representation of Peoples Act,
1951 which renders the election liable to be set aside u/s 100
(1)(b) and (d)(ii) of the Representation of Peoples Act and
whether the said malpractices alleged to have been committed
by the 1st respondent have been established before this Court.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Whether the 1st respondent has suppressed the
expenditure incurred under various heads in his election
accounts,
thereby
exceeding
the
permitted
election
expenditure and, thus violated Rule 90 of the Code of Conduct
Rules r/w Section 77 of the RP Act thereby rendering the
election liable to be set aside u/s 100 (1) (b) & (d)(ii), (iii) and
(iv) of the RP Act.
106. Issue Nos. 2 and 3 framed go together and, therefore, both the issues are
taken together for consideration.
107. To strengthen the argument insofar as the aforesaid issues are concerned,
Exs.P-4 to P-6 are pressed into service by the petitioner, so also the evidence of
P.W.s 1 to 5. Exs.P-4 and P-6 are booklets, which are alleged to have been printed
and circulated among the voters in the constituency, but the expenditure has not been
reflected in the election expenditure, which is a corrupt practice u/s 123 (6) of the Act.
108. In this regard, a careful perusal of the depositions of P.W.s 1 to 5 reveal that
all have alleged that the booklets, Exs.P-4 and P-6 were printed on the authorisation
of the 1st respondent and distributed through his agents to all the voters, numbering
1,92,000 in the constituency. In fact, it is to be pointed out that it is the stand of the
above witnesses that Ex.P-4 was distributed on 1.3.2021, 2.3.2021 and 3.3.2021
under the authorisation of R.W.1 by his agents. Even on the said date, P.W.s 1, 2 and
3 had knowledge about the distribution.
109. In fact, P.W.1, in his proof affidavit has nowhere stated about the authorisation
granted by the 1st respondent to his agents to distribute the booklets. Similarly, P.W.2,
the election agent of P.W.1, in his proof affidavit and also in cross examination has
not spoken about the specific authorisation granted by the 1st respondent to his agents
towards printing and distribution of booklets. But for the pleading in the election petition
alleging that R.W.1 had authorised the printing and distribution of Exs.P-4 and P-6 to
all the voters in the locality, there are no materials which point to the fact that R.W.1
had indulged in printing and directing distribution of Ex.P-4 in the locality. Therefore,
the direct involvement of R.W.1 in the said corrupt act has not been made out either
through the evidence of P.W.s 1 and 2.
110. P.W.3 in his proof affidavit had stated that he had lodged the complaint on
25.3.2021 in respect of distribution of Ex.P-4 between 1.2.2021 and 3.3.2021. Even
if this Court is not taking into consideration the delay in the lodging of the complaint,
Ex.P-24, the contents of the proof affidavit of P.W.3 shows that Ex.P-4 was being
distributed at the instance of R.W.1 by his agents. However, the names of the agents,
who were distributing Ex.P-4 has not been spelt out in Ex.P-24. In fact, Ex.P-24
speaks about the distribution of the booklet to all the voters in the constituency, yet no
independent voter, who is not affiliated to the party, has been examined to prove that
such a booklet was distributed by the cadre members belonging to AIADMK party.
111. Further, P.W.4, who has spoken about the receipt of Ex.P-4 has, in his
proof affidavit, stated that the booklet was distributed by one llangovan on 3.3.2021
in his house, which was witnessed by his uncle Balachandran and, thereafter, the
booklet was given to the party cadres. P.W.4 has deposed in cross examination
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
that be belongs to DMK party. P.W.4, in his statement, does not speak that the
said llangovan had distributed Ex.P-4 under the authorisation of the 1st respondent.
Further, there is no statement by P.W.4 that Ilangovan belongs to the party to which
the 1st respondent belongs.
112. On a careful perusal of the evidence of P.W.s 1 to 4, it clearly transpires
that neither there is any proof to the effect that the distribution of Ex.P-4 was
under the authorisation of the 1st respondent and the said booklet was distributed
by the agents under the authorisation of the 1st respondent or his election agent.
Therefore, Section 100 (1) (d) cannot stand attracted to the the issue on hand
relating to corrupt practice u/s 123 (6).
113. Likewise, Ex.P-6, which is stated to be the booklet allegedly printed and
distributed in respect of issuance of patta to 7644 persons in temple lands, the
same version, as has been stated by P.W.s 1 to 4 finds repetition with regard to the
distribution of the said booklet. It is the case of R.W.1 that he has not printed Exs.P-4
and P-6 and he has not authorised any agent or any person in his cadre to distribute
the same amongst the voters in the constituency. When there is a clear denial by the
1st respondent that he has not printed and distributed the booklets to the voters in the
constituency, the burden lies on the petitioner to prove that printing was done at the
instance of the 1 st respondent and distribution of the booklet amongst the voters in the
constituency was made on the authorisation of the 1 st respondent. However, both the
printing and distribution under authorisation of the 1 st respondent have not been proved.
There is material in the form of booklet, Exs.P-4 and P-6, but linking the said booklet
with the 1st respondent is not available, except for an allegation made by the petitioner.
114. In this regard, petitioner tries to draw inspiration from the decision of the
Apex Court in Common Cause case (supra), wherein the Supreme Court held as
under:-
“23 ....... Any expenditure in connection with the
election of a candidate which according to him has been
incurred by his political party shall be presumed to have been
authorised by the candidate or his election agent. But the
presumption is rebuttable. The candidate shall have to show
that the said expenditure was in fact incurred by a political
party and not by him. The candidate shall have to rebut
the presumption by the evidentiary standard as applicable to
rebuttable presumptions under the law of evidence. An entry
in the books of account of a political party maintained…”.
115. The above view of the Apex Court is not only highlighted by the petitioner
for the purpose of proving the corrupt practice u/s 100 (1) (b) and 100 (1) (d) more
particularly with regard to Exs.P-4 and P-6, but also with regard to the advertisements
in the newspapers, Ex.P-10.
116. Drawing the attention of this Court to Ex.P-10, it is the stand of the petitioner
that the advertisement, which has been given by the AIADMK party, necessarily the
expenditure towards the same should be drawn to the head of the election expenses of
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
the 1 st respondent, which is not reflected in the election expenditure submitted to the
election commission, which by itself is a corrupt practice under Section 123.
117. Though such a contention is advanced, what is to be pointed out is
that, though the said advertisement has been made in the newspaper, yet,
Ex.P-10 does not show the entire newspaper, but only a portion of a paper, which is
said to have been published on the particular day. Further, an objection has been raised
by the 1 st respondent with respect to the said document, Ex.P-10, as according to the
1 st respondent, the said document is not a complete document on which reliance could
be placed as the genuineness of the document itself is doubtful. Therefore, to that
extent, this Court cannot deliberate much on the said document.
118. Section 77 of the Act is taken in aid by the petitioner to show that the
expenditure incurred by the political party other than the expenditure of travel by the
leaders shall be expenses incurred by the candidate for the election process and,
therefore, the advertisements given would have to be taken in as the expenditure
of the candidate, which, having not reflected in the accounts, is a suppression of
expenditure, incurring the wrath of Section 123 of the Act as being a corrupt practice.
119. Section 77 provides that every candidate at an election shall, either by himself
or by his election agent, keep a separate and correct account of all expenditure in
connection with the election incurred or authorised by him or by his election agent
between the date on which he has been nominated and the date of declaration of
the result thereof, both dates inclusive and Explanation 1, therefor provides that the
expenditure incurred by the leaders of a political party on account of travel by air
or by any other means of transport for propagating programme of the political party
shall not be deemed to be the expenditure in connection with the election incurred or
authorised by a candidate of that political party or his election agent for the purposes
of this sub-section.
120. However, be that as it may. The issue that is before this Court pertains
to the advertisement given in the newspaper, Ex.P-10. As stated above, Ex.P-10 is
objected to by the 1 st respondent, as the full newspaper, which had been published
on the said day has not been filed before this Court for being taken as a material
document. Further, the 1 st respondent nowhere accepts that such an advertisement
was placed by him in the newspapers. It is only a stray answer of R.W.1 that it may
have been given at the instance of the headquarters of the political party. R.W.1 has
not, through any direct admission, admitted to him or the political party giving the said
advertisement. Further, the case of the petitioner hinges on the non-reflection of the
cost in the election expenditure. However, the fact remains that the election expenditure
of the political party is not placed before this Court and, therefore, if at all, the said
advertisement, Ex.P-10 was given by the political party, whether the said expenditure
was reflected in the election accounts of the political party is not exhibited before this
Court. Such being the case, this Court cannot come to any definitive conclusion that
there is a falsification of the election accounts of the 1 st respondent, which makes his
election as the returned candidate void. It is only in cases where there is a definitive
admission by the returned candidate that the expenditure was incurred by the political
party, which is in connection with the expenditure for the election of the candidate, then
it is necessary for the 1 st respondent to prove, by way of rebuttal, and not otherwise.
48
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
When there is clear negation by the 1 st respondent as to Ex.P-10 having not been
given by him and in the absence of any material to show that the expenditure such
advertisement, if at all made by the political party, has not reflected in the election
expenses of the political party, then the election expenditure accounts submitted by
the 1 st respondent would be prone to attack. However, in the absence of the above
materials with regard to Ex.P-10, this Court cannot fasten any liability on the 1 st
respondent with regard to the said expenditure
121. Further, what is more material here is the fact that upon the complaint of P.W.3,
P.W.20, the Returning Officer had issued show cause notice to the 1 st respondent and
the 1 st respondent was heard and the issue was closed. Such being the position, when
the election officials have acted on the complaint and closed the issue and there being
no material either to doubt the genuineness of the enquiry or a direct link of the 1 st
respondent with the printing and distribution of Exs.P-4 and P-6, the corrupt practice
as alleged under Section 123 have not been made out to attract the rigours of Section
100 (1) (b) and 100 (1) (d) (ii).
122. The respondent also drew the attention of this Court to Ex.C-17, the register
for Maintenance of day to-day accounts of the 1st respondent and submitted that though
the petitioner contends that permission was given for 5000 copies to be printed, however,
in Ex.C-17, it is shown that under the head “quantity”, it has been mentioned as 27,
while under the head “rate per unit” it has been entered as 3000, which according to
the learned senior counsel for the 1 st respondent is an inadvertent error, which has
crept in, where the numbers are written in the wrong columns. A perusal of Ex.C-17
reveals the above from which it could very well be deciphered that it is a clerical error,
which has crept in while filling the columns, where the figures stand interchanged in the
columns “quantity” and “rate per unit”. The said discrepancy cannot be said to be a
material discrepancy falling within the broad contours of corrupt practice, nor could it
be said that the said discrepancy had materially affected the election results.
123. Similarly, the alleged circulation of advertisements, which were circulated
on 5.4.2021, there is no material that could be connected with the 1 st respondent or
his election agent and other agents to show that the said advertisements have been
circulated along with the newspapers on 5.4.2021 by the 1 st respondent. In this regard,
the deposition of P.W.23 shows that Ex.P-10 was printed at the instance of the AIADMK
headquarters and it has no connection with R.W.1. Further, the said advertisement,
even through the deposition of P.W.23 shows, that it does not pertain specifically to
Vedaranyam constituency of the 1 st respondent. Therefore, fastening of any liability
on the 1 st respondent cannot be resorted to by this Court, merely on the allegation of
the petitioner.
124. Now coming to the alleged issue of tokens by the party cadre of the
1 st respondent on the day of the elections, it is the case of the petitioner that tokens
with the symbol of AIADMK were printed and issued to the voters and persons who
had voted, were asked to submit the token for which cash of Rs.5,000/ – and a silk
saree was given amounting to a few crores of rupees being expended, which amount
have not been shown in the election expenditure of the 1 st respondent, which by itself
is a corrupt practice u/s 123 (1) necessitating the declaration of the election of the
returned candidate as void.
49
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
125. The tokens, which were alleged to have been distributed have been marked
as Ex.P-7 series. A careful perusal of the tokens reveal that it carries the symbol of the
1 st respondent party. However, there is no other distinguishing feature to connect the
said token with any person, be it the 1 st respondent or the political party to which it
belongs.
126. A careful perusal of the statements of P.W.s 1, 2 and 3 in their respective
proof affidavit reveal that P.W.1 has not spoken anything about Ex.P-7, but had merely
deposed in cross examination that it is possible that the voters may not have voted
for the particular party inspite of getting the tokens and then getting paid the illegal
gratification on return of the tokens, as it is always done on the basis of trust and belief.
Therefore, to that extent there is no benefit that could be derived by the petitioner from
his evidence.
127. Coming to the evidence of P.W.s 2 and 3, it is seen that P.W.3 had
informed P.W.2 about the alleged distribution of Ex.P-7 and asked P.W.2 to make a
complaint with the flying squad, but P.W.2 had not made the complaint. It is the further
deposition of P.W.3 that he went to the spot and caught one Thangavel red-handed
and handed him over to the flying squad and, thereafter, the complaint came to be filed.
To a pointed question in cross examination as to whether P.W.3 had personally seen
the distribution of tokens, Ex.P-7 by Thangavelu, P.W.3 had replied in the affirmative
and had even gone on to depose that neither his name is found in Ex.P-9 complaint
nor the catching and handing over of Thangavelu by P.W.3.
128. In this regard, the evidence of P.W.17, the Deputy Block Development
Officer, assumes significance. P.W.17 had lodged Ex.P-9 on the information to the
Flying Squad about the disbursal of illegal gratification to the voters. To the questions
in cross examination, P.W.17 had deposed that when she went to the incident
place, one person from AIADMK party was caught by DMK party workers by
saying that he was distributing tokens to the voters, but there was no tokens in
the possession of the said person. P.W.17 had further gone on to depose that she
had not seen the tokens being distributed by AIADMK party workers. Therefore, the
evidence of P.W.3 gets negated by the evidence of P.W.17 that the said Thangavelu
was in the process of distributing tokens, when he was apprehended and handed
over to the flying squad. Further, it is also to be pointed out that there is no material
to connect the 1 st respondent with the distribution of tokens and also with the
payment of the alleged illegal gratification to the voters, who had cast their votes
in the said election.
129. When there is no direct material, which connects the 1 st respondent
with the printing and distribution of tokens, Ex.P 7 series, the 1 st respondent cannot
be brought within the ambit of Section 123 (1) of the Act to hold that the 1 st
respondent had perpetrated bribery amongst the voters through his agents, to come
out successful, which act had materially affected the election results of the returned
candidate and, therefore, neither the aid of Section 100 (1) (b) nor the aid of Section
100 (1) {d) could be derived by the petitioner.
50
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
130. Insofar as the 1 st respondent taking the aid of the Government official/
machinery in the election process, which, as has been alleged, has materially
affected the election results is concerned, it is mere allegation on the part of the
petitioner without there being any material, which points to the said act having been
perpetrated by the 1 st respondent. In this regard, the evidence of P.W.19 and P.W.22
does not in any way support the case of the petitioner, as there is a categorical
deposition by both the witnesses that all the acts done by the government officials
were only in accordance with the directions issued by the Government and also in
furtherance of the issuance of Government Orders. That being the specific deposition
of P.W.s 19 and 23, which thwarts the allegation of the petitioner, the corrupt practice,
alleged against the 1 st respondent u/s 123 (7) of the Act has not been made out.
131. Likewise, the alleged excess expenditure relating to wall painting alleged
by the petitioner against the 1 st respondent, P.W.11 has spoken about the same.
However. a perusal of the deposition of P.W.11 reveals that he had enquired with one
Mathiazhagan, who was a member of AIADMK standing nearby when the wall painting
was done, who had stated that it is done at the instance of the 1 st respondent. However,
P.W.11 has deposed that be belongs to DMK party and, therefore, necessarily, he is an
interested witness. Further, the name of Mathiazhagan is deposed, who is said to be a
member of AIADMK party, who has informed P.W.11, but the said Mathiazhagan has
not been examined as a witness. Therefore, at best, the evidence of P.W.11 could only
be treated to be a hearsay evidence, without there being any corroborative material
with regard to the same.
132. Further, the complaint, Ex.P-38, which is alleged to have been lodged by one
Pannerselvam relates to some wall painting done on the wall of his house. However,
the complaint is only with regard to the wall not being white washed thereafter and
it in no way relates to wall paintings, which had attracted alleged excess expenditure,
which have not been disclosed in the election expenditure.
133. One other allegation of corrupt practice, which has been pointed at the
1 st respondent is the alleged communal speech, said to have been made by the 1 st
respondent. The portion of the speech, which is alleged to have a communal flavour,
thereby, leading to an incitement of communal hatred is marked as Ex.P-16 and the
complete speech has been marked as Ex.P-15, though it has been objected to on
behalf of the 1 st respondent as it does not meet the requirements of Section 65-B of
the IT Act.
134. Be that as it may. The whole crux of the speech of the 1 st respondent is
to the effect that the petitioner has not done anything for the community to which he
belongs and that he has betrayed his community.
135. Section 125 of the Act speaks about promoting enmity between classes in
connection with election, which is brought as an electoral offence. Any person, who in
connection with an election promotes or attempts to promote on grounds of religion,
race, caste, community or language, feelings of enmity or hatred, between different
classes of citizens, is made a penal offence, which attracts imprisonment along with fine.
136. In the case on hand, a careful perusal of Exs.P-15 and 16, the whole text
and the portion of the text of the speech, reveals that the feelings of two different
51
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
classes of people of different community is not the issue, which has been spoken by
the 1 st respondent. The 1 st respondent, as a part of the election campaign, has merely
attacked the manner in which the petitioner had acted against his very own community
people and had gone on to state that the petitioner has betrayed his own community
people. This speech, by no stretch, can be taken to mean that there is a kindling of
communal feelings of two different groups, which would lead to communal disharmony.
137. It is within the boundaries of the 1 st respondent’s election campaign to
point out the merits of himself and the demerits of his opponent. The demerits of the
opponent, be it on his community basis, cannot be taken to mean that it is an attack on
the communal feelings of the particular community. A person is estopped, in the course
of election campaign, from kindling the communal feelings of different classes of people,
as that would lead to disharmony amongst the people living in the locality and would
lead to an unhealthy atmosphere for conducive living, but that would deter a candidate
from pointing out the demerits of the opposing candidate with regard to the promises,
which he has not done for his community. So long as the speech that does not kindle
the communal feelings between two different classes of community, the said speech
could not be brought within the ambit of inciting communal feelings.
138. In the aforesaid backdrop, as stated above, a careful perusal of the speech
of R.W.1 disclose that he has attacked the petitioner with regard to not keeping up
his promises relating to his community and that could not be said to be an act inciting
communal feelings and, therefore, the said contention does not merit acceptance.
139. Similarly, the petitioner has alleged broadcasting on Kalai TV the election
campaigns of the 1 st respondent and has stated that the expenditure is not reflected
in the election expenditure of the 1 st respondent. It is the specific case of R.W.1 that
he had not given any broadcasting to the TV and, therefore, no amount has reflected in
the election expenditure. In this regard, the perusal of the deposition of P.W.21 reveals
that he is the Managing Director of Kalai TV and that he had broadcasted the video
on his own and that he has not charged any amount to the 1 st respondent. P.W.21
had further gone on to depose that he had obtained permission, which has been
marked as Ex.P-40 and that he had attended the enquiry conducted in pursuance of
the representations, viz., Exs.P-27, P-28 and P-29.
140. P.W.20, the Returning Officer, in cross examination had deposed that he
had enquired P.W.21 based on the complaint Exs.C-9, C-10 and C-15 regarding the
complaint of telecasting the campaign on TV and found that there was no violation.
From the above depositions it is amply clear that the 1 st respondent had neither
telecasted nor authorised any person to telecast anything in the television and any
telecast by P.W.21 on his own volition cannot be put against the 1 st respondent.
141. From a careful perusal of the depositions of the witnesses, coupled with the
documents, both marked by the petitioner as well as by the official witnesses under the
‘C’ series, it transpires, that but for the allegations raised against the 1 st respondent,
there is no iota of evidence, which directly points a finger at the 1 st respondent as
having authorised or by the election agent of the 1 st respondent having authorised such
acts to be done by the agents of the 1 st respondent, which would attract the rigours
of Section 100 (1) (b) of the Act. Likewise, there is no material, apart from pleading,
52
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
in the form of proof, which establishes that the agents under the authorisation of
the 1 st respondent or his election agents had commissioned certain acts, which have
materially affected the outcome of the election in favour of the returned candidate,
thereby attracting the rigours of Section 100 (1) (d) of the Act. None of the two limbs,
which are material for this Court to declare the election of the returned candidate
as void having been established before this Court, and all the submissions, merely
being allegations in a bald and vague nature, this Court cannot topple the democratic
process through which the 1 st respondent has been elected by the voters in the
election, which had been conducted for the 165-Vedaranyam constituency, on the
ground of corrupt practice. In fine, though the petitioner has made pleadings with
regard to the corrupt practice, alleged to have been committed by the 1 st respondent,
however, in the absence of any substantive proof, which unerringly point to the 1 st
respondent indulging in corrupt practice, the decision in Krishnamoorthy’s case (supra)
stand squarely attracted and, therefore, necessarily the petitioner has miserably failed
to establish the pleadings with proper proof. Therefore, Issue Nos. 2 and 3 are
answered against the petitioner.
Issue No.4:
Whether the Returning Officer has violated
the directions of the Election Commission of India
with regard to conduct of polling relating to physically
challenged voters, thereby, affecting the election and
thus rendering the election of the 1st respondent to be
set aside u/s 100 (1) (d) (iii) of the RP Act?
142. The main grievance expressed by the petitioner is that the officers
in – charge of collecting Form 12-D did not collect the votes at the timings specified.
It is the further allegation of the petitioner that the 1 st respondent, through his party
workers. distributed Rs.2000/ – cash and a Horlicks bottle to each of the voters,
who were given Form 12D. Therefore, according to the petitioner, the act of the
1 st respondent is a corrupt practice, attracting Section 123 (1) of the Act and, therefore,
the election of the 1 st respondent should be declared as void.
143. The petitioner relies upon Exs.P-14 and P-26 in this regard. P.W.3 had deposed
in cross that with regard to Form 12D distribution, only a request was given under
Ex.P-26 and that no complaint was lodged to which P.W.3 had answered in the
affirmative stating that it is only a request. This clearly shows that there was no
complaint lodged, which goes to prove that the election officials in-charge had not acted
in a manner which was beneficial to the 1 st respondent.
144. Further, the other evidence with regard to discrepancy in Form 12D votes
is that of P.W.16, who is stated to be the legal advisor of the election agent. According
to P.W.16, he had deposed that he gave a representation on 31.03.2021, marked as
Ex.P-39. It is the deposition of P.W.16 that he had given the aforesaid representation
stating the discrepancies in the postal votes and that he had deposed that he got
information on the same. However, the source of his information nor the names of the
persons, who had given him the information is not available, which clearly shows that
53
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
it is a hearsay evidence and is not backed with any corroborative evidence. Further,
the deposition of P.W.16 also does not disclose the names of the officials, who had
gone along with the AIADMK agents to collect the votes.
145. Even a careful perusal of the deposition of P.W.16, it reveals that the said
witness is blowing hot and cold. While on the one hand, he claims to have personal
knowledge with regard to Form 12D votes, on the other hand he claims to have
knowledge through the agents. However, the names of the agents, who had given him
the information are not mentioned. Neither there is any mention about the names of
the agents of AIADMK who had gone and collected the Form 12D votes. The overall
deposition of P.W.16 is to the effect that he has a suspicion with regard to Form 12-D
votes. However, the said deposition is not backed by any substantive or corroborative
material.
146. P.W.10 is projected to be another witness to the wrongful collection of postal
ballots and payment of illegal gratification. The deposition of P.W.10, even on a bare
perusal, reveals that P.W.10 had deposed that he was informed that one Ravi had
collected the postal ballot by paying Rs.2000/ – and a Horlicks bottle was given,
which were under the instructions of the 1 st respondent. However, the said allegation
is not supported by any other corroborative material. However, in cross-examination
P.W.10 had deposed that he had not seen the alleged distribution of Rs.2000/ – and
Horlicks bottle and that he was not in the place when the Form 12-D votes were
obtained.
147. P.W.20 is the Returning Officer, who in his evidence has deposed that the
report of the officers who had gone to collect the ballot papers from the disabled
persons and voters above 80 years do not disclose any violation and that no complaint
has also been lodged in that regard. A perusal of Ex.P-14 also reveals the reports of
the officials/observers with regard to collection of Form 12-D votes and all the reports,
in unison, are on the line that the whole process was held as per procedure and that
it was videographed and that there was no allegation of distribution of bribe either in
the form of cash or kind.
148. There are no materials tabled before this Court to establish that either there
is a procedural infraction in the collection of form 12-D votes or that there is a corrupt
practice in the form of giving bribes to the voters, either in the form of cash or kind
or both. The petitioneronly allegesthat cash and horlicks bottle were paid to the voters,
from whom Form 12-D votes were obtained. Without there being proper proof in the
form of oral or documentary evidence, mere allegation cannot form the basis for this
Court to come to the conclusion that there is violation of collection of Form 12-D
votes when all the officials/observers, in unison and one voice have stated that there
was no violation. Further the collection of votes was also videographed and if at all
there was any violation, the petitioner could have summoned the videograph as a
part of his case to prove that illegal gratification had been passed on to the voters.
In the absence of any conclusive material, the case of the petitioner that there
was malpractice in the obtainment of Form 12-D votes is wholly inconceivable and
54
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
unsustainable. Accordingly, Issue No.4 is answered against the petitioner.
Issue Nos.1 & 5:
Whether the election of the 1st respondent from
165 – Vedaranyam Assembly Constituency to the 16th
Tamil Nadu Legislative Assembly, 2021, is liable to be
declared as illegal, ab initio void and set aside?
Whether the election petitioner is entitled for
a declaration declaring the petitioner as being duly
elected to the 165-Vedaranyam Assembly Constituency
in Tamil Nadu with effect from 2.5.2012?
149. On a holistic consideration of the entire materials, coupled with the
depositions of the witnesses as also the various decisions that have been placed
before this Court, it comes out as a cropper that the petitioner has not established
the ingredients found in Section 100 (1) (b) and 100(1) (d) so as to term the acts of
the 1 st respondent as corrupt practice as provided for u/s 123 (1), (2), (3), (6) and (7)
of the Act. All the allegations are mere allegations without there being any proper
evidence substantiating and corroborating the same and the said allegations, in the
absence of any conclusive materials, would not partake the character of proof so as
to enable this Court to strike out the election as void, thereby, ridiculing the mandate
of the people, who had returned the 1 st respondent as the successful candidate. This
Court has to necessarily submit itself to the people’s mandate when the petitioner has
not established the corrupt practice perpetrated by the 1 st respondent through any
credible and corroborative evidence. Therefore, necessarily this Court has to answer
the issue Nos.1 and 5 against the petitioner. Accordingly, Issue Nos.1 and 5 are
answered against the petitioner.
150. In the result, the election petition fails and, accordingly, the same is
dismissed. Consequently, connected applications are closed. 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 22ND DAY OF DECEMBER 2023.
Sd./--
ASSISTANT REGISTRAR (OS-II)
//Certified to be true copy//
Dated at Madras this the 10th day of January 2024.
COURT OFFICER (O.S)
‘Madras High Court is issuing certified copies in this format from 17/07/2023’.
55
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
PK
08/01/2024
ELP.NO.10 OF 2021
ORDER
DATED: 22/12/2023
THE HON’BLE MR. JUSTICE
M.DHANDAPANI
FOR APPROVAL: 09/01/2024
APPROVED ON: 09/01/2024
Copy to:-
1. The Election Commission of
India, Nirvachan Sadan,
Ashoka Road, New Delhi.
2.The Chief Electoral Officer
Tamil Nadu,
Election Commission of India,
Public (Elections) Department,
Secretariat, Fort St. George,
Chennai-600 009.
56
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
List of Witnesses in ELP No.10 of 2021:
Sl.
No.
Witness No.
Description/Name
1
P.W.1
S.K.Vetharathinam
2
P.W.2
K.Azhagirisamy
3
P.W.3
M.Anbarasu
4
P.W.4
R.Selvakumaran
5
P.W.5
V.Srinivasan
6
P.W.6
N.Mariyappan
7
P.W.7
Ramesh
8
P.W.8
S.Prabhakaran
9
P.W.9
Senthilnathan
10
P.W.10
T.R.Dravidamani
11
P.W.11
Srinivasan
12
P.W.12
Udayasuriyan
13
P.W.13
T. lllayaraja
14
P.W.14
Rajalakshmi, Zonal Deputy Block Development Officer
15
P.W.15
Panneer Selvam
16
P.W.16
Vetrivel
17.
P.W.17
Ramya. Deputy Block.Development Officer – Noon Meal)
18
P.W.18
A.Sathish Kannan, Surveyor
19
P.W.19
Pradhana Babu, Municipal Engineer
20
P.W.20
Duraimurugan, Spl. Deputy Collector
21
P.W.21
Kavitharan
22
P.W.22
G.Maheswari, Municipal
23
P.W.23
K.Chandrasekar, Sr. Chief Reporter of Dinamalar
24
P.W.24
Anbazhagan
25
R.W.1
O.S.Manian
57
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
List of Documents Marked by the Petitioner:
Sl.
No.
Date
Exhibit
Description of Document
1
18.03.2021
P-1
Photocopy of Nomination filed by the petitioner
2
13.03.2021
P-2
Photocopy of Nomination filed by the 1st respondent
3
02.05.2021
P-3
Photocopy of form 20 – Final Result Sheet
4
p-4
Booklets on Plans and Developments by the
1st respondent from 2016 to 2021 as Minister of
Handlooms and Textiles Department. printed and
distributed by the 1st respondent and his agents
5
25.07.2016
p-5
Photocopy of Election Commission of Notification
No .4/LET/ECI/FU NC/ JUD/SDR/2016.
6
P-6
Series
Booklets on grant of Patta printed and distributed by
the 1st respondent and his agents (2 Nos.)
7
p-7
Series
Tokens
printed
and
distributed
by
the
1st respondent and his agents for distribution of
illegal gratification to the voters (3 Nos.)
8
02.04.2021
p-8
Colour Photocopy of FIR No.145
9
06.04.2021
p-9
Photocopy of FIR No.172
10
04.04.2021
P-10
Copy of paper Advertisement criticising DMK
printed in the form of newspaper by the
1st respondent
11
24.08.2024
P-11
Photocopy
of
Election
commission
of
India
Notification No.3/9/2004/JS-II
12
16.10.2007
P-12
Photocopy of Election Commission of India
Notification No.3/9/2007/JS-II
13
P-13
Photocopy of Representation regarding circulation
of Newspaper
14
25.03.2021
P-14
Photocopy of regarding collection process of Form
12-D votes issued by the 15th respondent
15
03.03.2021
P-15
Communal speech by the 1st respondent
16
30.03.2021
P-16
Photocopy of Text of speech given by the
1st respondent
17
07.10.2008
P-17
Photocopy of Election Commission of India
Notification No.3/7/2008/ JS-II
58
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Sl.
No.
Date
Exhibit
Description of Document
18
P-18
Series
Photographs of wall paintings and flex boards
(4 Nos.)
19
P-19
Video of Flex Boards and wall paintings done by the
1st respondent
20
25.10.2013
P-20
Photocopy of Election Commission of India
Notification No.491/SM/2013
21
17.03.2021
P-21
Photocopy of Election commission of India Press
Note No.ECI/PN/31/ 2021
22
24.03.2021
P-22
Photocopy of Representation of DMK worker
regarding inauguration of bus stand by the
1st respondent
23
P-23
Series
Photographs relating to inauguration of projects
after announcement of 2021 elections (6 Nos.)
24
25.03.2021
P-24
Representation given by the petitioner's advocate to
the 15th respondent regarding distribution of booklets
(Ex.P-4) by the 1st respondent
25
19.03.2021
P-25
Representation given by the petitioner's advocate to
the 15th respondent regarding distribution of Ex.P-6
26
19.03.2021
P-26
Representation given by the petitioner's advocate to
the 15th respondent regarding postal votes of COVID
victims
27
19.03.2021
P-27
Representation given by the petitioner's advocate to
the 15th respondent regarding telecast of canvassing
in local cable TV by the 1st respondent.
28
20.03.2021
P-28
Second representation given by the petitioner's
advocate to the 15" respondent regarding telecast of
canvassing in local table cable TV by 1st respondent
29
P-29 &
P-32
Two DVD recordings of campaign which was
telecasted in Kalai TV 65-B certificate for the Two
DVD marked as Ex.P-32
30
19.03.2021
P-30
Representation given by the petitioner's advocate
to the 15th respondent regarding illegally used
electricity at Anganvadi
31
22.03.2021
P-31
Second representation given by the petitioner's
advocate to the 15th respondent regarding usage of
official machinery by the 1st respondent
59
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Sl.
No.
Date
Exhibit
Description of Document
32
05.04.2021
P-33
FIR No.170
33
09.01.2021
P-34
Representation
of
V.Senthilnathan
seeking
information under Right to Information Act, 2005
34
16.03.2021
P-35
Photocopy of Information regarding preparation
of list for grant of patta to people residing in lands
belonged to temple obtained under RTI Act
35
05.04.2021
P-36
FIR NO.171
36
05.04.2021
P-37
FIR No.169
37
23.03.2021
P-38
FIR No.159
38
31.03.2021
P-39
Representation
regarding
discrepancies
in
Form12-D votes
39
29.03.2021
P-40
Original Permission granted by District Election
Officer
40
04.04.2021
P-41
Copy of Tamil Daily Newspaper namely "Dinamalar"
41
P-42
Computer
generated
invoice
raised
for
the
advertisement in Ex.P-41
42
17.03.2023
P-43
A copy of the RTI application with original
acknowledgment
43
10.04.2023
P-44
Original reply
List of Official Exhibits Marked :
Sl.No.
Exhibit
Description of Document
1
C-1
Photocopy of representation dated 19.03.2021 given by
Mr.M.Anbarasu along with the photocopy of the report dated
17.03.2021 issued by Mr. Swaminathan Flying Squad Officer
(compared with original)
2
C-2
Original proceedings dated 26.03.2021 about the collection of
postal votes from the persons about 80 years and persons with
disability along with tabular column showing the teams formed for
collection of said votes
3
C-3
The original representation dated 22.03.2021 given by
Mr.M.Anbarasu along with the original report received from the
officials
60
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Sl.No.
Exhibit
Description of Document
4
C-4
The original letter dated 22.03.2021 written by the Returning
Officer to the Block Development Officer seeking the report on
the representation dated 22.03.2021
5
C-5
The original office report on the representation dated 22.03.2021
6
C-6
The original representation dated 19.03.2021 given by
Mr.M.Anbarasu along with the reports received from the official
on the said representation
7
C-7
Original
representation
dated
10.03.2021
sent
by
Mr. P.Venkateswaran, Advocate of DMK Party Vedaranyam to
Returning Officer along with the report received from the official
on the representation (Complaint for the P-6 series)
8
C-8
Original representation dated 19.03.2021 given by Mr.M.Anbarasu
to the Returning Officer regarding the list of voters to the BLA-2
agents
9
C-9
Original
representation
dated
18.03.2021
given
by
Mr.P.Venkateswaran to the Returning Officer regarding the
advertisement telecasted on Kalai TV
10
c-10
Original representation dated 19.03.2021 given by Mr.M.Anbarasu
to the Returning Officer regarding the advertisement telecasted
on Kalai TV
11
C-11
Original complaint dated 24.03.2021 given by Mr.A.Paribalan
regarding the inauguration of land for opening a bus stand.
12
C-12
Original representation dated 25.03.2021 given by Mr.M.Anbarasu
to the Returning Officer regarding the distribution of 54 pages
booklets to the voters along with the report received in this
regard
13
C-13
Original representation dated 5.4.2021 given by Mr.M.Anbarasu
to the Returning Officer regarding the paper advertisement along
with the reports received from the official (Ex.P-10 is the subject
matter of C-13 representation)
14
C-14
Original representation dated 31.03.2021 given by Mr.P.Vetrivel
to the Returning Officer regarding the collection of votes from the
voters above 80 years along with the reports received from the
officials
15
C-15
Original note file dated 20.03.2021 regarding the representation
dated 19.03.2021
16
C-16
Photocopy of the affidavit filed by the 1st respondent regarding
his election expenditure (compared with the original}
61
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Sl.No.
Exhibit
Description of Document
17
C-17
Original Register for maintenance of day to-day accounts
(Volume-I) of the 1st respondent
18
C-18
Original register for maintenance of day to-day accounts (Volume-
ll) of the 1st respondent
19
C-19
Original register for maintenance of day to-day accounts(Volume-
III) of the 1st respondent
20
C-20
Original shadow observation register for maintenance of day
accounts (Volume - I & II) of the 1st respondent
21
C-21
Original final result sheet and election records submitted by the
Sub Treasury, Vedaranyam
Sd./-
Assistant Registrar (OS-II)
(By Order)
Malay Mallick,
Principal Secretary,
Election Commission of India.
Secretariat,
SATYABRATA SAHOO,
Chennai-600 009,
Chief Electoral Officer and
7th March, 2024.
Principal Secretary to Government.
PRINTED AND PUBLISHED BY THE COMMISSIONER OF STATIONERY AND
PRINTING, CHENNAI ON BEHALF OF THE GOVERNMENT OF TAMIL NADU