[ 1 ]
DTP—V-4 Ex.(476)—1
TAMIL NADU
GOVERNMENT GAZETTE
EXTRAORDINARY PUBLISHED BY AUTHORITY
No.476]
CHENNAI, TUESDAY, AUGUST 12, 2025
Aadi 27, Visuvaavasu, Thiruvalluvar Aandu–2056
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.
2025
[Price : Rs. 22.40 Paise.
NOTIFICATIONS BY THE ELECTION COMMISSION OF INDIA
JUDGMENT OF THE HIGH COURT OF MADRAS IN ELECTION PETITION
No.09 OF 2021.
No.SRO G-27/2025.
The following Notification of the Election Commission of India, Nirvachan Sadan,
Ashoka Road, New Delhi-110 001, dated 09th July, 2025 [18 Ashadha,1947 (Saka)]
is published:-
No. 82/TN-LA/(EP 09 of 2021)/2025:- 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 28.05.2025
in Election Petition No. 09 of 2021.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION)
WEDNESDAY, THE 28TH DAY OF MAY 2025
THE HON’BLE MS. JUSTICE P.T.ASHA
Election Petition No. 9 of 2021
2
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
T.SENGUTTUVAN
S/o. Thimmappagoundar,
No.1/48, Velagalahally Village,
Alapatti Post, Krishnagiri Taluk,
Krishnagiri District,
Tamil Nadu-635 122. ...
Petitioner
-Vs-
1. ASHOKKUMAR. K
S/o. Krishnamurthy,
5/191, Thiruvalluvar Nagar,
II nd Cross Street, Krishnagiri - 635 001.
2. CHANDRAMOHAN.K.Μ
S/o.K.K. Mani, No.1, Shanthi Nagar,
2nd Street, Krishnagiri - 635 001.
3. TAMILSELVAN. S
S/o. Selvam, 3/32, Ward No.1,
M-Nadupatti Village and Post,
Bargur Taluk, Krishnagiri - 635 203.
4. AMEENULLA
S/o. Basha, 20-A, Kumbarapettai,
Ward No.6, Hosur Taluk,
Krishnagiri District - 635 109.
5. SASIKUMAR. K.S
S/o. K.S. Subramani, 65/15B,
Jakkappan Nagar, 8th Cross Street,
Krishnagiri - 635 001.
6. NIRANDARI. V
W/o. Vadivelu, 1, Nagamangalam Village,
Achamangalam Post, Bargur Taluk,
Krishnagiri District - 635 108.
7. RAVISHANKAR. R.K
S/o. Kodhandaraman,
2/3, 3rd Cross, Mohan Rao Colony,
Krishnagiri 635 001.
3
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
8. RUTHRAMANI. T
S/o. N. Thagaraj, 3/216,
Ettikal Agaram, Gangaleri,
Krishnagiri 635 122.
9. VIJAYAKUMAR. R
S/o. Rathinavel, 4/54,
Mottur Village and Post,
Krishnagiri Taluk 635 112.
10. TVS GANDHI
S/o. Chinnasamy, MIG 8,
Housing Board, Kattiganapalli,
Krishnagiri 635 001.
11. KUMARESAN. M
S/o. Munusamy, 3/350,
Subedhar Medu Village,
Kattinayanpalli Post,
Krishnagiri Taluk and District-635 001.
12. GOPINATH. M
S/o. Munusamy, 1/63,
II nd Cross, Mullai Nagar,
Krishnagiri 635 001.
13. SAKTHI. K
S/o. Krishnan, 3/259,
Kattinayanpalli Post,
Krishnagiri 635 001.
14. SIVAN. C
S/o. Chinnasamym 1/287,
K.V.Kovilkottai, Sokkadi Village,
Moramadugu Post, Krishnagiri 635 122.
**15. THE ELECTION COMMISSION OF INDIA,
Represented by its Chief Election Commissioner,
Nirvachan Sadan, Ashoka Road,
New Delhi 110 001.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
**16. THE CHIEF ELECTORAL OFFICER, TAMIL NADU
Election Commission of India,
Public (Elections) Department,
Secretariat, Fort.St. George, Chennai 600 009.
**17. THE DISTRICT COLLECTOR CUM
DISTRICT RETURNING OFFICER,
District Collector Office,
Krishnagiri District, Tamil Nadu 635 001.
**18. THE RETURNING OFFICER
53, Krishnagiri Assembly Constituency,
Krishnagiri Taluk, Krishnagiri District,
Tamil Nadu 635 122.
19. G. KARPAGAVALLI
The Returning Officer, 53,
Krishnagiri Assembly Constituency,
Krishnagiri Taluk, Krishnagiri District,
Tamil Nadu-635 122
...
Respondents
(**Respondents 15 to 18 struck off in ELP.No.9 of 2021 as per order of
this court dated 11.01.2022 made in O.A.No.672 of 2021 in ELP.No.9 of 2021)
This Election Petition praying that this Hon’ble Court be pleased to (a) Declare
the election of the 1st Respondent to No. 53, Krishnagiri Assembly Constituency in
the State of Tamil Nadu on 02.05.2021 as illegal, void and liable to be set aside.
(b) Declare the Petitioner herein as duly elected to No. 53, Krishnagiri Assembly
Constituency in the State of Tamil Nadu with effect from 02/05/2021.
(c) Direct the 1st Respondent to pay the cost of the Petition.
The above Election Petition having been heard on 02/09/2024 in the presence of
Mr.Richardson Wilson for M/s.P.Wilson Associates, advocate for the Election Petitioner,
Mr.T.V.Ramanujam, Senior counsel for Mr.B.Arvind Srevatsa for 1st Respondent
and upon reading the Election Petition and Affidavit of T.Senguttuvan filed herein
and this court having stood over for consideration till this day and coming on this
day before this court for orders in the presence of the above said advocates and
this court having observed that in the instant case the petitioner has not been able
to categorically assert with the evidence that an extent of 23 cents continued to
remain in the name of the petitioner and the non-disclosure of this has materially
affected the result of the election and the petitioner has not proved the exchange
of money for votes through concrete evidence and this petitioner has not been able
to prove his contention that the first respondent has indulged in corrupt practices,
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
further the petitioner has not been able to prove the allegation with reference to
over expenditure and the paintings on the public buildings and fly overs, and after
scrutinizing the postal ballots and the videograph, it is seen that the allegations
made by the petitioner that the postal ballots had been rejected indiscriminately, that
the agents were not kept informed, and that the counting had taken place in the
absence of the agents, are all found incorrect, therefore the grounds raised by the
petitioner in this regard cannot be countenanced, the State assembly election was
conducted on 06.04.2021 and the results were announced on 03.05.2021, though
the first respondent would contend that the petition was filed on 30.06.2021, nearly
63 days after the announcement of the election results, however, in the result of the
judgment of the Hon’ble Supreme Court dated 27.04.2021 made in miscellaneous
petition No.665 of 2021 in SMW(C) No.3 of 2020, the time stood automatically
extended, therefore the petition is filed well within the time.
it is ordered as follows:-
1. That the Election Petition No.9 of 2021 be and is hereby dismissed.
2. That there shall be no order as to costs.
WITNESS, THE HON’BLE MR.JUSTICE SHRIRAM KALPATHI RAJENDRAN,
CHIEF JUSTICE, HIGH COURT AT MADRAS, AFORESAID THIS THE 28TH DAY
OF MAY 2025
SD./-
Assistant Registrar
Original Side –II
//Certified to be true copy//
Dated at Madras this the 11th day of June 2025.
COURT OFFICER (O.S)
‘Madras High Court is issuing certified copies in this format from 17/07/2023’.
6
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
MK
05/06/2025
ELP.NO.9 of 2021
THE HON’BLE MS. JUSTICE
P.T. ASHA
DECREE DATED: 28/05/2025
FOR APPROVAL: 10/06/2025
APPROVED ON: 10/06/2025
Copy to:
1. The Returning Officer
53, Krishnagiri Assembly Constituency,
Krishnagiri Taluk, Krishnagiri District,
Tamil Nadu 635 122.
2. Election Commission of India
Nirvachan Sadan, No.1,
Ashoka Road,
New Delhi-110 001
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION)
WEDNESDAY, THE 28TH DAY OF MAY 2025
THE HON’BLE MS. JUSTICE P.T.ASHA
Election Petition No. 9 of 2021
ELP No.9 of 2021:-
T.SENGUTTUVAN
S/o. Thimmappagoundar,
No.1/48, Velagalahally Village,
Alapatti Post, Krishnagiri Taluk,
Krishnagiri District,
Tamil Nadu-635 122.
…Petitioner
-Vs-
1. ASHOKKUMAR. K
S/o. Krishnamurthy,
5/191, Thiruvalluvar Nagar,
II nd Cross Street, Krishnagiri - 635 001.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
2. CHANDRAMOHAN.K.Μ
S/o.K.K. Mani, No.1, Shanthi Nagar,
2nd Street, Krishnagiri - 635 001.
3. TAMILSELVAN. S
S/o. Selvam, 3/32, Ward No.1,
M-Nadupatti Village and Post,
Bargur Taluk, Krishnagiri - 635 203.
4. AMEENULLA
S/o. Basha, 20-A, Kumbarapettai,
Ward No.6, Hosur Taluk,
Krishnagiri District - 635 109.
5. SASIKUMAR. K.S
S/o. K.S. Subramani, 65/15B,
Jakkappan Nagar, 8th Cross Street,
Krishnagiri - 635 001.
6. NIRANDARI. V
W/o. Vadivelu, 1, Nagamangalam Village,
Achamangalam Post, Bargur Taluk,
Krishnagiri District - 635 108.
7. RAVISHANKAR. R.K
S/o. Kodhandaraman,
2/3, 3rd Cross, Mohan Rao Colony,
Krishnagiri 635 001.
8. RUTHRAMANI. T
S/o. N. Thagaraj, 3/216,
Ettikal Agaram, Gangaleri,
Krishnagiri 635 122.
9. VIJAYAKUMAR. R
S/o. Rathinavel, 4/54,
Mottur Village and Post,
Krishnagiri Taluk 635 112.
10. TVS GANDHI
S/o. Chinnasamy, MIG 8,
Housing Board, Kattiganapalli,
Krishnagiri 635 001.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
11. KUMARESAN. M
S/o. Munusamy, 3/350,
Subedhar Medu Village,
Kattinayanpalli Post,
Krishnagiri Taluk and District-635 001.
12. GOPINATH. M
S/o. Munusamy, 1/63,
II nd Cross, Mullai Nagar,
Krishnagiri 635 001.
13. SAKTHI. K
S/o. Krishnan, 3/259,
Kattinayanpalli Post,
Krishnagiri 635 001.
14. SIVAN. C
S/o. Chinnasamym 1/287,
K.V.Kovilkottai, Sokkadi Village,
Moramadugu Post, Krishnagiri 635 122.
**15. THE ELECTION COMMISSION OF INDIA,
Represented by its Chief Election Commissioner,
Nirvachan Sadan, Ashoka Road, New Delhi 110 001.
**16. THE CHIEF ELECTORAL OFFICER, TAMIL NADU
Election Commission of India,
Public (Elections) Department,
Secretariat, Fort.St. George, Chennai 600 009.
**17. THE DISTRICT COLLECTOR CUM
DISTRICT RETURNING OFFICER,
District Collector Office,
Krishnagiri District, Tamil Nadu 635 001.
**18. THE RETURNING OFFICER
53, Krishnagiri Assembly Constituency,
Krishnagiri Taluk, Krishnagiri District,
Tamil Nadu 635 122.
9
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
19. G. KARPAGAVALLI
The Returning Officer, 53,
Krishnagiri Assembly Constituency,
Krishnagiri Taluk, Krishnagiri District,
Tamil Nadu-635 122.
…Respondents
(**Respondents 15 to 18 struck off in ELP.No.9 of 2021 as per order of
this court dated 11.01.2022 made in O.A.No.672 of 2021 in ELP.No.9 of 2021)
This Election Petition praying that this Hon’ble Court be pleased to (a) Declare
the election of the 1st Respondent to No. 53, Krishnagiri Assembly Constituency in
the State of Tamil Nadu on 02.05.2021 as illegal, void and liable to be set aside.
(b) Declare the Petitioner herein as duly elected to No. 53, Krishnagiri Assembly
Constituency in the State of Tamil Nadu with effect from 02/05/2021.
(c) Direct the 1st Respondent to pay the cost of the Petition.
The above Election Petition having been heard on 02/09/2024 in the presence of
Mr.Richardson Wilson for M/s.P.Wilson Associates, advocate for the Election Petitioner,
Mr.T.V.Ramanujam, Senior counsel for Mr.B.Arvind Srevatsa for 1st Respondent
and upon reading the Election Petition and Affidavit of T.Senguttuvan filed herein
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:-
Challenging the election of the 1st Respondent as the returned candidate of
No.53, Krishnagiri Assembly Constituency, the petitioner is before this Court.
2. The petitioner has sought the following reliefs:
i) Declare the election of the 1st Respondent to No.53, Krishnagiri Assembly
Constituency in the State of Tamil Nadu on 02.05.2021 as illegal, void and liable to
be set aside.
ii) Declare the petitioner herein as duly elected to the No.53, Krishnagiri
Assembly Constituency in State of Tamil Nadu with effect from 02.05.2021 and
iii) Direct the 1st Respondent to pay the cost of the petition.
3. Petitioner’s case:
(i) It is the case of the petitioner that he belongs to Dravida Munnetra Kazhagam
(hereinafter referred to as “DMK party”) and has been a resident of Velgalahally
Village having been born there. The petitioner has been active in the political arena
since his young age having been inspired by great leaders like Periyar, Perarignar
Anna and Dr. Kalaignar M.Karunanidhi. The petitioner, therefore, devoted himself
to achieving the objects and philosophies of the DMK party. He has been holding
various posts in the party and has successfully contested the last 3 consecutive
Tamil Nadu Legislative Elections as the candidate of the DMK party and served as
a Member of the Legislative Assembly from the year 2006 to April 2021.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(ii) The General Elections to the 16th Tamil Nadu Legislative Assembly 2021
(hereinafter referred to as “the Elections”) had been notified on 26.02.2021 by the
15th Respondent through a press release of the same day. The following was the
schedule for the Elections:
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 candidatures
22.03.2021
Date of poll
06.04.2021
Date of counting and declaration of results
02.05.2021
(iii) The petitioner was fielded as the candidate of the DMK Party for the
53, Krishnagiri Assembly Constituency on 12.03.2021 and he was contesting under
the symbol ‘Rising Sun” which is the party symbol. The petitioner has filed his
nomination papers on 17.03.2021 and the nomination was accepted after scrutiny on
23.03.2021. The 1st respondent was fielded by the All India Anna Dravida Munnetra
Kazhagam (hereinafter referred to as “AIADMK Party” as the party’s candidate. After
scrutiny of the nominations, the following list of candidates qualified to contest the
elections and given below are their names, their party name and symbol:-
SL.
NO.
NAME OF THE
CANDIDATE
PARTY
SYMBOL
1
Senguttuvan. T.
Dravida Munnetra Kazhagam
Rising Sun
2
Ashokkumar. K.
All India Anna Dravida Munnetra
Kazhagam
Two Leaves
3
Chandramohan. K.M.
Nationalist Congress Party
Clock
4
Tamilselvan.S
Bahujan Samaj Party
Elephant
5
Ameenulla
All India Majlis-E-Ittehadul
Muslimeen
Kite
6
Sasikumar. K.S.
Anna Puratchi Thaiaivar Amma
Dravida Munnetra Kazhagam
Jack Fruit
7
Nirandari.V.
Naam Tamilar Katchi
Ganna Kisan
8
Ravishankar. R.K.
Makkal Needhi Maiam
Battery Torch
9
Ruthramani. T.
Desiya Makkal Sakthi Katchi
Foot Ball
10
Vijayakumar. R.
Veerath Thiyagi Viswanatha doss
Thozhilalarkal Katchi
Pestle and Mortar
11
TVS Gandhi
Independent
T.V.Remote
12
Kumaresan.M
Independent
Road Roller
13
Gopinath.M.
Independent
Dish Antenna
14
Sakthi.K.
Independent
Computer
15
Sivan.C.
Independent
Television
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(iv)The petitioner’s son S.Tamilselvan was his Chief Election Agent. The
elections to 233 Constituencies including the Krishnagiri Constituency, hereinafter
referred to as “the constituency”, was held on 06.04.2021 and the 1st respondent
had been declared as the returned candidate by the 18th respondent on 02.05.2021.
The 1st respondent had secured 96,050 votes and the petitioner herein was the next
candidate who secured 95256 votes and the margin of victory was just 794 votes.
The 18th respondent, on 02.05.2021, had officially declared the results.
(v) The petitioner seeks to challenge the above election of the 1st respondent
from the Constituency, contending that the election was illegal and was liable to be
declared as void under Section 100(1)(b)(d)(i)(ii)(iii) and (iv) and Section 123(1)(A)
of the Representation of People Act, 1951 (hereinafter referred to as the “RP Act”).
The following are the grounds on which the petitioner had sought to declare the
election of the 1st respondent as illegal.
(A) SUPPRESSION IN FORM-26 AFFIDAVIT:
The petitioner would contend that the 1st respondent along with his three
brothers owned a total extent of 2 acres and 8 cents in S.No.207/2A, Rettiyur Village,
Vaniyambadi Taluk, Thirupattur District which was their ancestral property. In a sale
deed dated 25.10.2004 executed by the 1st respondent and his brothers in favour of
one T.Mahendran registered as Document No.3686 of 2004 on the file of the Sub
Registrar Office, Vaniyambadi, the same has been reflected. The 1st respondent
and his brothers had sold an extent of 1 acre 81 cents (78,977 sq.ft) to various
persons through their Power Agent by dividing it into plots and after the sale, they
continued to hold an extent of 23 cents in the aforesaid survey numbers. However,
the first respondent has suppressed this piece of land in the Form-26 Affidavit. The
petitioner owns a 1/4th share in the aforesaid extent. The petitioner would therefore
submit that there was an improper acceptance of the nomination filed by the
1st respondent which has materially affected the election of the petitioner.
(B) DISTRIBUTION OF CASH FOR VOTES:
It is the further contention that the 1st respondent, his Chief Election Agent and
his booth agents along with the AIADMK party workers with the consent, knowledge,
instructions and authorization and cost of the 1st respondent had distributed a
sum of Rs.500/- to the voters in the Constituency as illegal gratification with the
idea of securing votes in his favour. This distribution had started from the date of
announcement of the poll till the date of poll. This act of the 1st respondent and
the persons acting under / through him is a clear violation which falls under Section
123 of the RP Act and the election of the 1st respondent has to be declared null
and void. The petitioner has set out a tabulated statement containing the details
of the persons who had received the illegal gratification, their addresses along with
details of the persons who had so distributed the amount, place, date time and
person who had witnessed such distribution. Therefore, it is his contention that
since a corrupt practice had been adopted, the election of the first respondent has
to be set side.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(C) USAGE OF OFFICIAL MACHINERY BY THE 1st RESPONDENT TO SECURE
VOTES:
The allegation of the petitioner is that one Nagaraj, who was working as a
Supervisor in the Electricity Board and therefore, a Government Servant, had been
canvassing for the 1st respondent by wearing a shirt printed with the AIADMK
party symbol from 05.03.2021 to 25.03.2021 throughout the constituency, including
Kaveripattinam Town, Aalapatti, Palakudi, Madipatti, Vengaleri, Krishnagiri Town,
Kuppam Road, by using the Government car which was available in his office.
This has been witnessed by the petitioner and his election agent. The use of the
petitioner’s Machinery for campaigning by the 1st respondent and his agents is,
once again a violation of various provisions of the RP Act therefore, the election
of the 1st respondent has to be set aside.
(D) EXCEEDING THE PERMITTED ELECTION EXPENDITURE FOR WALL PAINTING
SYMBOL ADVERTISEMENTS APART FROM OTHER VIOLATIONS:
(i)
The petitioner would state that the election commission had fixed a sum
of Rs.30,80,000/- as election expenditure for every candidate in the Constituency.
However, on a cursory consideration of the wall painting advertisements put by the
1st respondent to propagate his name and his party symbol, the petitioner would
estimate an expenditure of Rs.20,00,600/-. The wall paintings has been done at the
behest and direction of the 1st respondent and has been physically verified by the
petitioner and his agents and party workers. The petitioner would submit that on a
physical verification by the petitioner, his agents and party workers, they have come
to learn that the 1st respondent and his election agents with his consent, knowledge,
instructions, authorization and cost had painted wall advertisement covering nearly
22330 sq.ft throughout the constituency including all the 44 panchayats and for this
alone, a sum of Rs.20,00,600/- was spent by the 1st respondent which exceeds the
total permitted limit for a candidate.
(ii)
The petitioner has provided a tabulated statement detailing the extent
of wall painting including the street name, village and panchayats as also the
expenditure incurred by him. Therefore, the petitioner would submit that since the
excess expenditure attracts Section 123(6) of RP Act and is a corrupt practice, the
election of the 1st respondent is liable to be set aside under Section 100(1)(b) of
RP Act.
(E) VIOLATION COMMITTED
BY
PLASTERING
WALL
POSTERS
WITH PARTY SYMBOLS ON THE WALLS OF THE PUBLIC PROPERTIES
APART FROM OTHER VIOLATION:
(i) The contention of the petitioner is that the 1st respondent, his election
agent and party workers have plastered the walls of Government buildings belonging
to Krishnagiri Municipality with AIADMK party symbols. They have also not spared
the walls of various fly overs which have been listed in detail in paragraph No.13
of the election petition. This plastering of wall posters is stated to have taken place
between 03.04.2021 and 04.04.2021. The petitioner’s election agents V.Vengattappan,
S.Krishnamoorthy, M.Chandrasekar, S.Prakash, M.Velumani noticed this and informed
13
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
the same to the petitioner and his Chief Election Agent. This act is Also a violation of
Model Code of Conduct. Despite the representation of the petitioner dated 04.04.2021
to the respondents 16 to 18 and the Election Observer of the Constituency, no
action has been taken against the 1st respondent and his party.
(ii) According to Code 16.3(i) of Model Code of Conduct, all wall writing, posters/
papers
or defacement in any other form, cutout/ hoardings, banners, flags etc, on
Government property shall be removed within 24 hours from the announcement of
elections by the Election Commission. Since the Municipal body, buildings, railways,
flyovers etc. are public properties as contemplated under the Code 16.3(ii) of the Model
Code of Conduct, the act of plastering the public property with posters containing
AIADMK party symbol after announcement of the election is violative of the Model
Code of Conduct. The petitioner would submit that a minimum of Rs.10 would have
been spent on each posters for plastering the walls and this expenditure has been
suppressed by the 1st respondent though he is bound to maintain such records as
per Section 77 of the RP Act. This excess expenditure has not been taken note of
by the 18th respondent/Returning Officer or by the Election Observer.
(F) IMPROPER REJECTION OF POSTAL BALLOT VOTES:
(i) The petitioner would submit that the counting of the postal ballots had
commenced at 8.00 am in the presence of the Chief Election Agent and other agents.
The Chief Election Agent and the other agents of the petitioner had noticed that
several postal vote covers were discarded by the officials without assigning reasons.
The petitioner’s chief Agent, namely S.Tamilselvan had questioned the same. He
requested the 18th respondent to show the results of the postal ballots for all the
candidates and the agents and to reject the same only if there are any reasonable
grounds for rejection. However, the 1st respondent refused to show the results even
after the several requests and rejected 605 covers without assigning any reasons.
(ii) In paragraph 17 of the tabulated statement, the petitioner has set forth the
reasons given for rejecting the votes and the number of votes rejected under each
head. 80 votes which have been rejected under the heads “others” do not fall within
the reasons for rejection as provided under Rule 54-A(8) of Conduct of Election
Rules(hereinafter referred to as “Election Rules). The petitioner also questioned that
the rejection under various heads was not in compliance of the Rules. Therefore, the
petitioner would submit that the rejection of 605 postal votes without reasons and in
contravention of Rules 54A (11) and 54A (8) of Conduct of Election Rules had materially
affected the election of the petitioner.
(G) DEFICIENCY AND IRREGULARITIES IN COUNTING EVM VOTES:
(i) The petitioner would make a complaint about two polling stations. He would
state that with reference to polling station No.79, Government High School, Gangaleri
with EVM bearing Control Unit No.BCUAF08025, on 06.04.2021, a mock poll was
conducted to test the EVM machines. However, without resetting the machines,
the polling had commenced and therefore, 50 votes cast in the said EVM were
invalid. The Returning Officer has informed the same on the date of the counting
and assured that this EVM would be kept aside and counted later through VVPAT.
However, contrary to this assurance, it was taken up for counting at a later point in
time in the absence of the petitioner and his agents.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(ii) EVM used in polling station 95 bearing Control Unit No.BCUEF88410 was
taken up for counting in Round 9 at Table 1. However, the same did not work.
The Officer-in-charge of the counting unit was directed by the Returning Officer to
keep this control unit separately and to count the votes at the end. However, in this
case also, the same came to be counted through VVPAT in the absence of the
petitioner and this agents. On 02.05.2021, the petitioner gave a representation to
the 18th respondent and the Election Observer of the constituency stating that the
entire counting process is doubtful and requesting for recounting of all EVMs and
postal votes before the number of votes secured by each candidate were entered in
Form-20 by the 18th respondent. However, this request was turned down by order
in reference No.Ka.No.972/2020/A, dated 02.05.2021 under Rule 63(3) of conduct
of Election Rules, 1961 stating lack of reasons as a ground for rejection of request.
The petitioner would also set out the procedure for counting of VVPATs in the place
of votes polled in the EVM. Therefore, the petitioner would submit that since the
procedure contemplated under the Act and Rules by the Returning Officer, the election
of the petitioner has been materially affected. But for this corrupt practice and these
irregularities, the petitioner would have been the successful candidate. The petitioner
had bright chances to win and his election prospectus has been greatly impaired
and hampered by the corrupt practice adopted by the 1st respondent. Therefore,
the petitioner has come forward with this election petition.
CASE OF THE FIRST RESPONDENT / SUCCESSFUL CANDIDATE:
4. The first respondent had filed a written statement denying the various
allegations contained in the election petition and would submit that the very petition
lacks legal merits and has to be dismissed. The first respondent would raise the
preliminary objection that the allegations made by the petitioner in his election petition
is not supported by any conceivable material evidence and therefore, the election
petition deserves to be dismissed in limine.
5. The 1st respondent would submit that the allegations made by the petitioner
are totally baseless and does not merit consideration. Therefore, relying upon the
judgment of the Hon’ble Supreme Court reported in (1981) 2 SCC 689 [Aeltemesh
Rein Vs. Chandulal Charakar], the 1st respondent would submit that where a
petition is not supported by sufficient proof, the election petition has to be dismissed
in limine. The 1st respondent would further submit that the election petition has to
be presented within a period of 45 days from the date of the election of the returned
candidate or if there are more than one candidate and the date of election are
different, then the later of the dates would prevail. In the instant case, the State
assembly election was conducted on 06.04.2021 and the results were announced
on 02.05.2021. However, the petition was filed on 30.06.2021 nearly 63 days after
the announcement of the election results and therefore, the petition is liable to be
dismissed.
6. The 1st respondent would submit that there is no statutory provision for the
condonation of delay in filing the election petition and therefore, the instant election
petition was not maintainable, as it was filed with a delay of 63 days.
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7. The 1st respondent would also submit that the election petition itself has
been filed by the petitioner only to avenge his ego and jealousy considering the
fact that the petition has been filed without substantial proof. He would also rely
on the judgment of this Court in the case of C.Kuppusamy Vs.Chief Election
Commissioner (W.P.No.12996 of 2002) where it has been held that if it is proved
that the election petition has been filed to appease the ego, and the same would
become infructuous and is liable to be dismissed.
8. The 1st respondent would submit that the election petition is liable to be
dismissed as it does not comply with the provisions of Section 83(1)(a) of the RP
Act. This Section provides that the person filing an election petition should give a
concise statement of the material facts on which the petitioner relies. However,
such a disclosure has not been made by the petitioner. He would submit that the
allegation that the 1st respondent had overspent the election expenditure has not
been proved and it fails to meet the requirement under Section 83(1)(a) of the RP
Act. He would further state that the averments of the petition does not qualify as
ground of corrupt practice and satisfy the essential conditions set out in Section
83(1)(b) of RP Act.
9. The first respondent has gone on to answer the allegations contained in
the petition as follows:
In answer to the allegation that there is a suppression of facts in Form-26
affidavit, the 1st respondent would submit that the property is not under his ownership
and that he has alienated the same much before the date of submission of the
nomination Form and this transaction has also been recorded in the encumbrance
certificate.
10. With reference to the allegation of distribution of cash for votes, the 1st
respondent would submit that the petitioner is trying to prove the same by producing
photographs which are not a substantial proof. The veracity of the photographs and
the involvement of the 1st respondent has to be proved beyond reasonable
doubt. The 1st respondent would further submit that the petitioner has not disclosed
the name of the agent or the full particulars with reference to the corrupt practice.
Mr.Vinayagam who is alleged to have indulged in the corrupt practice does not
belong to the AIADMK party and there is no evidence to prove that the said person
is a member of the said party. Further, the petitioner has not made complaint then
and there in this regard.
11. With reference to the allegation of propaganda by the Government official
wearing the symbol of AIADMK party, the answering respondent would submit that he
has no relationship with the said person and he was not aware about him. However,
the alleged act has taken place much before the date of election and further the
petitioner ought to have reported the same immediately, which admittedly has not
been done. That apart, without prejudice to the above submission, the answering
respondent would add that an employee of the Tamil Nadu Electricity Board
is not a Government servant and cannot be treated as an official machinery of the
state. The 1st respondent would rely on the judgment reported in (1980) DLT 337
[C.M.Stephen Vs.Atal Behari Vajpayee].
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
12. As regards the excess expenditure of the wall paintings and symbol
advertisements, the 1st respondent would clarify that the date on which these acts
are stated to have been done was on 03.03.2021 whereas the 1st respondent has
filed his nomination only on 12.03.2021. Therefore, the same cannot be treated as
an unlawful practice.
13. The 1st respondent would submit that he is a law abiding senior citizen of
the Country and has been zealously engaged in public work and constantly works
for the benefit of the society at large. He has entered politics only on account
of the great leaders who have led the party like Periyar, Dr.C.N.Annadurai,
Dr.M.G.Ramachandran and Dr.J.Jayalalitha. He had been elected as a Member of
parliament in the year 2014 General Assembly Elections and had discharged his
duties with utmost dedication. It is his sheer hard work that has got him elected.
Therefore, he would seek for the dismissal of the election petition.
ISSUES FRAMED :
14. The following Issues have been framed by this Court in the above
Election Petition :-
“1. Whether the election of the 1st respondent from the No.53, Krishnagiri
Assembly Constituency to the 16th Tamil Nadu Legislative Assembly,
2021 is liable to be declared as illegal, ab initio void and set aside?
2. Whether the 1st respondent has willfully suppressed his assets in his
nomination form and affidavit thereby materially affecting the election
of the 1st respondent and rendering his election liable to be set aside
under Section 100(1)(d)(i) & (iv) of the Representation of People ACT,
1951?
3. Whether the 1st Respondent is guilty of having been committed the corrupt
practice under Section 123 of the Representation of People Act, 1951,
thereby rendering the election of the 1st Respontendent liable to be
set aside under Section 100 (1)(b) & (d) (ii)?
4. Whether the 1st Respondent is guilty of having been committed the corrupt
practice under Section 123 (7) of the Representation of People Act,
1951, thereby materially affecting the election of the 1st Respontendent
and rendering it liable to be set aside under Section 100 (1)(b) & (d)
(ii) of the Representation of Peoples Act, 1951?
5. Whether the 1st Respondent has exceeded his permitted election
expenditure and thus violated Rule 90 of the Code of Conduct Rules,
1961 r/w Section 77 of the Representation of Peoples Act, 1951, thus
committing a corrupt practice under Section 123 (6) rendering his
election liable to be set aside under Section 100 (1)(b) & (d) (ii)(iv) of
the Representation of Peoples Act, 1951?
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
6. Whether the 1st respondent, and with his knowledge, consent and
direction, his agents and other party workers have plastered the walls
Government buildings and public properties with posters thereby
violating the Model Code of Conduct, thus rendering the election of the
1st respondent liable to be set aside under Section 100(1)(d)(iv) of
the Representation of People Act, 1951?
7. Whether the Returning Officer of the No.53. Krishnagiri Constituency
committed irregularities and illegalities by improperly rejecting the
postal ballot votes and in counting the votes recorded in the EVMs,
thereby materially affecting the election of the 1st Respondent rendering
the election liable to be set aside under Section 100(1)(d)(iii) of the
Representation of the Peoples Act, 1951?
8. Whether the present election petition is barred by limitation and latches?
9. Whether the present election petition is compliant of Section 81 of the
Representation of People’s Act 1951?
10. Whether the present petition contains sufficient cause of action for this
Hon’ble Court to take cognizance and try the same?
11. Whether the Petitioner herein should be declared as duly elected to the
No.53-Krishnagiri Assembly Constituency in Tamil Nadu w.e.f.02.05.2021?
12. Whether the Petitioner is entitled to costs?
13. To what other reliefs is the petitioner entitled to?”
TRIAL :
15. On the side of the petitioner (plaintiff), the petitioner has been examined
himself as P.W.1 and 17 documents have been marked on his side. The first
respondent examined himself as R.W.1 and no documents have been marked on
his side. C.W1 to C.W.4 have been examined as Court witnesses pursuant to the
summons taken out by the petitioner and Exts.C1 to C17 has been marked through
these witnesses. On the side of the respondents, the 1st respondent has been
examined as a witness and no documents have been marked on their side.
SUBMISSIONS :
16. Although extensive oral arguments had been adduced on both sides,
they have submitted exhaustive written arguments and therefore, this Court is relying
upon these written submissions and extracting the submissions made by either side,
in a concise manner.
Written submissions of the petitioner:
17. The petitioner has submitted his written submissions on the grounds upon
which the election of the 1st respondent is sought to be set aside.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(i) Suppression in Form -26 Affidavit by the 1st respondent:
This is covered under issue No.2 of the issues framed by this Court. The petitioner
would contend that the 1st respondent and his 3 brothers had owned an extent of
2 acres 8 cents in S.No.207/2A, Rettiyur Street, Vaniyambadi Taluk, Thirupttur District,
Vaniyambadi which is the property they had inherited from their father, Krishnamoorthy.
The 1st respondent and his brothers had formed a layout and sold several portions of
the property as plots. To prove the sales, the petitioner has filed Ex.P5-Encumbrance
Certificate. The learned counsel would submit that out of the extent of 2.08 acres,
1 56 acres was sold leaving behind the extent of 0.52 acres of land. However, the
patta which has been marked as P4 still shows an extent of 0.36.35 hectares, i.e
0.89 acres which continues to remain in the name of Krishnamoorthy Gounder and
others. The learned counsel would submit that the 1st respondent has not denied
this issue in his counter statement, except for stating that in the computer patta,
the petitioner’s name does not feature and the encumbrance certificate only goes
to show that the property has been sold out. This fact is also admitted by the
1st Respondent in his cross examination as R.W1. The learned counsel would
further submit that the failure to submit an explanation for the aforesaid allegation
in the counter statement is sought to be addressed through arguments where a new
defense is raised that the extent of 0.89 acres constitutes the OSR lands which have
been gifted when the layout was formed. An alternate argument was also made for
the first time by the 1st Respondent that even if there is some land available, this
would not in any manner materially affect the election. Such a statement, according
to the petitioner is fallacious in as much as Section 100 (1) (d) of the RP Act does
not contemplate an investigation into the intent or mens rea like a criminal offence.
Suffice it to say that if any of the 4 grounds of this section is attracted, the intent
of the candidate pales into insignificance. The candidate has violated the mandatory
requirements of disclosure of assets. This is covered by a judgment of the Hon’ble
Supreme Court in the case of Union of India Vs. Association for Democratic
Reforms and Another [2002] 5 SCC 294. Sections 33-A and 33-B of the R.P. Act
require the candidate to mandatorily disclose such information as is sought from
him by the Act and Rules. Rule 4A of the Conduct of Election Rules, hereinafter
referred to as the “CE Rules”, set outs the Form of Affidavit that is to be filed by the
candidate at the time of filing his nomination paper. This is an affidavit sworn by the
candidate before a Magistrate of the first class or a Notary in Form 26. Clause 7 of
Form 26 requires every candidate to declare his movable and immovable assets,
assets of his spouse and dependent children. Therefore, it is the contention of the
petitioner that by not including the aforesaid asset in the Form 26, the petitioner has
violated the provisions of Section 100(1)(d)(iv) of the R.P. Act and it is fatal to the
election which cannot be cured. Therefore, according to the petitioner, issue No.2
has to be answered in favour of the petitioner. He would rely upon the following
judgments as well :-
i.
2015 (3) SCC 467 – Krishnamurthy Vs Sivakumar & Others
(paragraphs 62 to 65, 81 & 86)
ii.
1996 (2) SCC 752 – Common Cause (A Regd. Society) Vs.
Union of India & Others (paragraphs 23 & 26)
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
iii.
AIR 2014 SC 2069 - Kisan Shankar Kathore Vs Arun
Dattatraya Sawant & Others
(paragraphs 31, 32, 33, 37, 38, 39, 40, 41 & 43)
iv.
2012 (3) SCC 314–Mangani Lal Mandal Vs Bishnu Deo Bhandari
(paragraphs 9 to 11)
(ii) Distribution of cash for votes which is covered under Issue No.3
The petitioner would contend that the 1st Respondent and under his instructions,
his agents and party workers had distributed cash of Rs.500/- to each of the voters
of the constituency in exchange for their votes. To prove the above allegation,
apart from the petitioner’s evidence as P.W1, two other eye witnesses have been
examined. P.W3 – Chandersekar would depose that he has himself seen one
Vinayakam who is the spokesperson of the AIADMK party and one Arumugam
distributing Rs.500/- along with a pamphlet to a voter, Akbar asking him to vote
for the 1st Respondent. P.W3 would contend that he had taken a photo of the
same and this photograph is marked as Ex.P15. The evidence of P.W3 has been
extracted in the written arguments. The next witness examined in this regard is
P.W4- Velumani, who had deposed that on 04.04.2021, he had seen Vinayakam
canvassing for the 1st Respondent at Govindapuram Street where he observed
Vinayakam placing a Rs.500/- note on a pamphlet bearing the AIADMK symbol to a
voter, Yaraf requesting to vote for the 1st Respondent. P.W4’s evidence in this regard
has also been extracted. It is the contention of the petitioner that 1st Respondent
has raised the defense that the full particulars of the alleged corrupt practice have
not been furnished and that apart, there is nothing to show that Vinayakam was
a member of the AIADMK party. Therefore, what is to be considered is whether
Vinayakam is a Member of the AIADMK party or not. The 1st R espondent has
attempted to brush aside the statement by contending that the said Vinayagam
is not a Member of the AIADMK party. To counter the same, the learned counsel
for the petitioner would invite the attention of this Court to the evidence of CW4-
Vinayakam wherein he has admitted that during the relevant period namely the
Election 2021, he was very much a Member of the AIADMK Party. In his chief
examination, he had admitted the photograph. This admission was later sought to
be retracted by contending that the entire photograph was orchestrated by a DMK
Town Secretary. In the cross examination, the witness has admitted that he had
shifted from the AIADMK party to DMK party. However, the learned counsel for
the petitioner would submit that in response to another question, the witness has
clearly answered that he had shifted from the AIADMK party to DMK party only
after Ex.P15 was taken. Therefore, the defense that Vinayakam was not a member
of the AIADMK at the relevant point in time fails. The learned counsel for the 1st
Respondent, in oral arguments, had contended that Section 65-B certificate given
by P.W3 is illegal, since the certificate ought to have been given by Bhavani Studio
which had printed the photograph. The said contention is totally misconceived as the
responsibility under Section 65-B is fastened on the person who is producing the
electronic evidence to certify that the electronic output is an accurate reproduction.
Therefore, the person taking the photograph is competent to produce the
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Section 65B certificate. The learned counsel would further contend that bribery
of voters is a serious election offence under Section 123-1(A) of the R.P.Act and
such corrupt practice attracts the provisions of Section 100(1)(d)(ii) of the R.P.Act.
Therefore, this corrupt practice materially affects the election and issue No.3 is also
to be answered in favour of the petitioner. He would rely upon the judgment reported
in 2017 SCC Online Mad 1977 (paragraphs 14, 20, 21, 23, 28 & 29)
(iii) Use of official machinery which is covered under Issue No.4:
The petitioner’s contention is that the 1st Respondent had secured the
assistance of one Nagaraj, a Supervisor of the Tamil Nadu Electricity Board (now
TANGEDCO) who has canvassed for the 1st Respondent across the constituency
between 05.03.2021 to 25.03.2021 by wearing a shirt which had the AIADMK party
symbol printed on it. C.W3-Senthil Kumar has been examined as Court witness No.3
to substantiate the above contention. He had deposed that he had seen the said
Nagarajan canvassing for the 1st Respondent on 24.03.2021 at Aalapatti within the
Krishnagiri Assembly Constituency while wearing AIADMK party symbol. The defense
is that the said Nagaraj is not a Government servant within the meaning of Section
123(7) of the R.P. Act and the 1st Respondent has not asked him to canvass for
votes. Therefore, the petitioner would submit that once there is an admission, there
was no necessity to prove the same. The defense that the said Nagaraj is not a
Government servant is false. According to the petitioner, the TANGEDCO is fully
owned by the State Government. The argument of the learned senior counsel for
the 1st Respondent is that Nagaraj was not an official appointed or deputed by the
Election Commission of India in connection with the conduct of the elections and
therefore, Section 123(7) of the R.P.Act would not be attracted. The learned counsel
for the petitioner, in this regard, would submit that Section 123(7) of the R.P.Act
does not envisage the appointment of a specific individual and only contemplates a
class of persons who are in the service of the local authority, university, government
Company or institution or concern or undertaking appointed or deputed by the Election
Commission in connection with the conduct of elections. The phrase “appointed” or
“deputed” is only attached to the last category i.e., undertakings. The Court has to
consider all the facts to determine as to whether TNEB/TANGEDCO can be involved
in conducting elections since electricity is an essential service for the conduct of
elections. Therefore, the involvement of one of the board members squarely falls
within the embargo of Section 123(7) of the R.P.Act. Therefore, he would submit
that the issue No.4 has to be answered in favour of the petitioner.
(iv) Exceeding the permitted maximum expenditure:
The petitioner’s contention is that the maximum permitted expenditure is
Rs.30,80,000/- per candidate. The petitioner in his pleadings has contended that
the 1st Respondent has spent over a sum of Rs.20,00,600/-for the wall painting
advertisements alone. The wall paintings had been physically verified by the petitioner,
his agents and his party workers. P.Ws.2, 5 and 6 have been examined in order
to prove the above statement. Exs.P16 and 17 series have been marked through
them. In their defense, the 1st Respondent has stated that the document submitted
by the petitioner to prove the above allegation is prior in point of time from the date
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
of nomination. However, the petitioner would submit that there is no specific denial
either specifically or generally to the allegations made. The petitioner would submit
that the statement of expenditure has not been denied by the 1st Respondent.
Therefore, taking note of the fact that the 1st Respondent has filed expenses to the
tune of Rs.15,06,058/- to which, when Rs.20,00,600/- is added, it would be crystal
clear that the 1st Respondent had exceeded the election expenditure. Therefore,
this is violative of Section 77(3) of the RP Act and Rule 90(b) of the C.E. Rules.
The failure to adhere to the maximum expenditure limit is also a corrupt practice
under Section 123(6) of the R.P. Act which reads as follows:-
(6) The incurring or authorizing of expenditure in contravention of section 77.
Therefore, he would pray that the issue No.5 should also be answered in
favour of the petitioner.
(v) Painting / Plastering Government Buildings which is covered under Issue No.6:
The petitioner’s contention is that the 1st Respondent had painted and plastered
the walls of the Government buildings belonging to the Krishnagiri Municipality with
election advertisements and party symbols. It is the contention of the petitioner that
this contention has not been specifically denied by the first respondent. Therefore,
the issue No.6 has to be answered in favour of the petitioner. The learned counsel
for the petitioner would rely upon the following judgments :
i.
1996 (2) SCC 752 – Common Cause (A Regd. Society)
Vs Union of India & Others
(paragraphs 23 & 46)
ii.
1999 (1) SCC 666–L.R.Shivaramagowda & Others
Vs T.M.Chandrashekar (dead) by LRs & others
(paragraph 19)
(vi) Improper rejection of postal ballots which is covered under Issue No.7:
The petitioner would contend that the Returning Officer and other counting
officers had not followed the procedures prescribed under the R.P.Act for counting
and rejecting the postal ballots. The Returning Officer had rejected 605 postal
ballots. However, while counting and rejecting the same, the petitioners were not
informed about the reasons for the rejection. The petitioner would further contend
that at around 1.00 p.m., at the end of the counting of postal ballots neither the
tally of rejected votes nor the reasons for rejection were provided to the petitioner
and this information was handed over only around 9.30 p.m. At that time, they
were informed that 605 votes were rejected out of the total 3318 postal ballots.
The petitioner has made a representation under Ex.P10 dated 02.05.2021 requesting
the Returning Officer to re-count the votes. It is the contention of the petitioner that
only thereafter, Ex.P.11 dated 02.05.2021 came to be issued by the Returning Officer
and the reasons for the rejection have been issued. The petitioner has also contended
that although Ex.P.11 was the document that was served on the petitioner, however
when the same document was subpoenaed from the Returning Officer, and
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
produced as Ex.C3, the total tally had changed. The image of the tabular column
had been altered and the number of votes had been changed by hand. He would
further submit that, as per the requirement of the law, each postal ballot was to be
dealt with separately and the reasons for rejection of the postal ballot should be
clearly written on the ballot. It is the contention of the petitioner that Rule 54A
of the C.E. Rules had not been followed in the case of postal ballots. The main
contention in this regard on the side of the petitioner is that all the valid ballot papers
and the rejected ballot papers have to be separately bundled and kept together
in a packet which was sealed with the seals of the Returning Officer and of such
of the candidates, their election agent or counting agents who shall also affix their
seals thereon. According to the petitioner, such a procedure has not been adopted.
It is also their contention that though the signatures of their two counting agents
had been obtained in the final tally and the result sheet, the calculation sheet or
the note sheet where the reasons have been scribbled by hand has not
been furnished to the Agents and neither are these reasons recorded on the postal
ballots. C.W.2-Returning Officer has deposed that she does not remember who
has written or to whom it was furnished. The counsel for the petitioner would
also submit that C.W.2 had falsely deposed before this Court. On the one hand
she would state that the reasons have been explained to the agents and on the
other hand, she admitted that the reasons were written by hand by the Assistant
Returning officer on a white sheet titled “abstract” and no signatures had been
obtained by them. The CCTV footage of the postal ballot marked as Ex.C8 shows
the following illegalities committed by the AROs. The reason for rejection was neither
communicated nor ballots shown to the candidates or their agents. No ARO can be
seen writing any reasons on the ballots. Counting has been done in the absence
of the agents. The petitioner has set out the errors committed while viewing the
CCTV footage in a tabulated statement in his written arguments. The petitioner
had made an application for recounting the entire votes including the postal votes
under Rule 63 of the C.E Rules which was rejected by the Returning Officer under
Ex.P13. The petitioner would also rely upon the Handbook for Returning Officers,
2019 to submit that where the victory of margin is less than the total number of postal
ballots received then there should be a mandatory re- verification of all postal ballots.
The petitioner had taken out an application in O.A.No.27 of 2024 for re-counting.
This application was allowed by this Court. However, on appeal, the Hon’ble
Supreme Court had set aside the order in O.A.No.27 of 2024 dated 25.03.2024
and remanded the matter back for fresh consideration. Therefore, he would submit
that unless and until the postal ballots are verified, the petitioner’s contention that
the postal ballots have been rejected illegally, cannot be proved. With reference to
this issue, the petitioner has relied upon the following judgments :
i.
1996 (4) SCC 53 – Vikhesa Sema Vs Adhishe Sema
(paragraphs 6, 14 to 16)
ii.
2001 (6) SCC 558 – P.H. Pujar
Vs Dr.Kanthi Rajashekhar Kidiyappa & Others
(paragraphs 4, 9 & 10)
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
iii.
2014 (5) SCC 312 – Arikala Narasa Reddy vs Venkataram
Reddy Reddygari & Another (paragraphs 13, 15 & 41)
(vii) Illegalities committed in counting EVMs which is covered under
Issue No.7:
The petitioner would submit that the illegalities had been committed in the
counting of two EVMs. The two allegations are as follows:
(i)
In the polling station No.79, Government High Court, Gangleri, in respect
of the EVM bearing Control Unit Number BCUAF08025, the mock poll data had not
been erased. Originally, the Returning Officer had announced that since the data of
mock poll had not been deleted, the EVM would be kept aside. However, later the
Returning Officer had announced that votes in the said EVM was counted
through its VVPAT in the absence of the petitioner and his agents.
(ii)
In Polling Station 95, the EVM bearing control unit No.BCUEF88419, when
taken up for counting during Round 9 at Table-1, it did not work and showed an error.
The officer in-charge was asked to keep the Control Unit separately. However, the
said EVM was counted using its VVPAT once again, in the absence of the petitioner
and his agent. When the EVM at Polling Station No.79 was checked before this
Court, the total votes displayed as 657 which included 50 mock poles. Likewise
in the case of EVM of PS 95, the machine initially showed a “Data Digit Error”
and when the machine was restarted, it showed the number of votes recorded as
716. According to the petitioner, there was no necessity to count the votes through
VVPAT. The petitioner would question the procedure adopted by the Returning
Officer in verifying the VVPAT counting, as it was contrary to the provisions of
Rule 5D of the C.E Rules. He would submit that the Returning Officer had not
obtained permission from the election commission for either refusing to delete the
mock poll or for counting the votes through VVPAT. Therefore, he would submit that
the procedures followed at Polling station numbers 79 and 95 are totally flawed
and materially affect the result of the election and therfore, Issue No.7 should be
answered in favour of the petitioner.
(iii) As regards the other issues, the petitioner would submit that with reference
to the limitation, there was no arguments adduced on the side of the 1st Respondent.
It is admitted that the election petition was filed within the extended period of limitation
granted by the Hon’ble Supreme Court due to the Covid Pandemic. Therefore,
he would submit that the issue Nos. 8 to 10 has to be answered in favour of the
petitioner.
(iv) The petitioner would also rely upon the following judgments:
i.
2013 (9) SCC 659 – S.Subramanian Balaji Vs State of Tamil Nadu
and others, for the proposition that the instructions issued by the
Election Commission of India has the force of law traceable to Article
324 of the Constitution of India.
ii. 1997 SCC Online P&H 766 – Harbans Singh Jalal Vs Union of India
Model Code of Conduct.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
iii. 1996 (1) SCC 169 – Manohar Joshi Vs Nitin Bhaurao Patil & Another;
iv. 1980 (2) SCC 197 – Shiva Chand Vs Ujagar Singh and others.
The judgments in (ii) and (iv) have been submitted in support of their
argument that in case of corrupt practices, the election of a returned
candidate has to be set aside.
v.
In support of his arguments regarding the credibility of witnesses,
the learned counsel for the petitioner would rely upon the judgment
reported in 1957 SCC Online MP 83- State of Madhya Pradesh Vs
Banshilal Behari.
vi. As regards the argument that a party cannot go beyond the pleadings
particularly with reference to Issue Nos.1 and 2, the counsel for the
petitioner would rely upon :
i. 2018 (11) SC 652 – Sri Shivaji Balaram Haibatti Vs
Sri Avinash Maruthi Pawar;
ii. 2015 (9) SCC 755 – Nandkishore Lalbhai Mehta Vs
New Era Fabrics Pvt Ltd. & Others;and
iii. 2008 (17) SCC 491 – Bachhaj Nahar Vs Nilima Mandal & Others.
Written submissions filed on behalf of the 1st respondent:
18.1 The 1st respondent, who is the contesting respondent, has submitted the
following written submissions issue wise and their arguments are set out herein
below in the same fashion as in their written arguments / submissions.
A) Issue No.2 : Whether there is a wilful suppression of assets:
(i) The answer to this allegation is that there has been no wilful suppression
by the 1st Respondent. He would contend that the election petitioner has solely
relied upon the encumbrance certificate-Ex.P5 and Ex.P4-patta dated 25.06.2021
to contend that there is a suppression. The 1st Respondent would contend that
Ex.P4 would clearly show that the patta stands in the name of the 1st Respondent’s
father and not in his name. In Ex.P5- Encumbrance certificate, there are 73 entries
regarding Survey No.207/2A for the period between 01.01.1990 to 17.06.2021.
The Encumbrance certificate would clearly describe a 15 feet wide pathway being
provided to the various purchasers. The layout plan would also indicate these
pathways. This area occupied by the passage in the approved layout as also the
OSR vests totally with the local body and the plot owners. These lands have not
been taken into consideration and the petitioner has simply contended that 23
cents continue to remain in the hands of the petitioner. The execution of the Gift
Deed to the local body is only a Ministerial Act. Therefore, the 1st Respondent
would submit that having sold the property to over 73 purchasers and the layout
plan clearly shows the existence of the pathway, the petitioner and his family
members no longer have any right over this property. The object of the affidavit in
Form-26 is only to provide information to the voters. The Hon’ble Supreme Court
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has clearly stated that the non disclosure should be of a substantial nature and that
trivial and inconsequential information cannot be treated as suppression of facts.
The 1st Respondent would submit no voter has been manipulated on account of
this affidavit in Form-26.
(ii) The 1st Respondent would contend that from the language in which
the issue is couched, it is clear that the suppression has to be wilful. In the instant
case, the suppression is neither wilful nor wanton. In support of this statement,
he would place reliance upon some portions of the cross examination of P.W1
as also R.W1. In answer to a question put to P.W1 as to how the petitioner has
come to the conclusion that 23 cents of land is still available in Survey No.207/2A
and standing in the name of the 1st R espondent, the answer given was that the
petitioner had filed Encumbrance Certificate and the patta standing in the name of
the 1st Respondent’s father. The witness has admitted that the 1st Respondent’s
name is not found in Ext.P4, patta, but however his father, Krishnamurthy Gounder’s
name is mentioned. The witness further admitted that there no documents to show
that 23 cents in Survey No.207/2A remains in the name of the 1st Respondent and
ultimately, stated that it is jointly enjoyed by the petitioner and his brothers. R.W1,
during his cross examination, has admitted that the extent of 2 acres and 8 cents
was his ancestral properties and that the same stood in the name of his father.
R.W1 has categorically denied the allegation that an extent of 23 cents still remains
with the family. The first Respondent would rely upon the judgment reported in
2024
SCC Online 519 – Karikho Kri Vs Nuney Tayang and another
(Paragraphs 40, 41, 44 & 45) in support of his arguments.
B) Issue No.3: Whether the 1st Respondent is guilty of having
committed the corrupt practice under Section 123 of the R.P.Act
(i) With reference to this allegation regarding the distribution of cash for votes,
it is the contention of the 1st Respondent that the election petitioner has adopted
mutually destructive pleas in his petition. While at one place, the election petitioner
has alleged that the 1st R espondent, his election agent, his booth agents along with
AIADMK workers acting under the consent, knowledge, instructions and authorization
and cost of the 1st Respondent have distributed cash of Rs.500, however, in the
very same paragraph (Para No.9), the said allegation has been given a go-by and
the petitioner would state that the election agent had distributed the cash. However,
the name of the election agent has not been mentioned. The tabular column set
out in paragraph 10 of the election petition does not clearly state that the persons
to whom money was distributed, are voters of the Krishnagiri Constituency. The 1st
respondent would further submit that evidence has been created by the election
petitioner by examining obliging / interested witnesses who have deposed falsely.
(ii) It is also the contention of the 1st respondent that the election petitioner
has not shown how Section 123 of the RP Act is attracted. The 1st respondent
would highlight the admissions, the falsity in the petition as well as the deposition of
the witnesses. He has also pointed out the admissions made by the witnesses that
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
they have not lodged any complaint with the Returning Officer about the distribution
of cash. The witness has also admitted that 8 persons who are alleged to have
received the illegal gratification have not been shown in the list. The first respondent
has also highlighted the contradictions in the evidence of P.Ws 1, 2, 3 and 4 as
also the 3rd parties who have been examined as C.W2, C.W3 and C.W4. The 1st
respondent would submit that Ex.P15 photograph which has been marked to show
the distribution of cash cannot be believed as it has not been proved in the manner
known to law. Therefore, in the absence of proof of c orrupt practice, issue no.3
has to be answered in favour of the 1st respondent.
C) Issue No.4: Government employees engaged in the election campaigning
for the 1st respondent
It is the case of the election petitioner that one Nagaraj, who is an Electricity
Board Supervisor, has canvassed for the 1st respondent and therefore, the 1st
respondent is guilty of misusing the official machinery. In this regard, he would
set out the contradictions in the evidence of P.Ws 1 and 2 as also C.W3. The
witnesses have not stated that the said Nagaraj is a registered voter of Krishnagiri
Constituency. In fact, in answer to a question regarding whether Nagaraj
is a registered voter of the Uthangarai Constituency, the reply of P.W1 was that
his wife stood for election at Uthangarai and Nagaraj is a voter of the Krishnagiri
Constituency. The second witness on the petitioner side had undertaken to produce
proof that Nagaraj was a registered voter of the Krishnagiri Constituency but however
the proof was not produced. C.W3 who has been examined to prove the contention
that Nagaraj had canvassed has admitted that he belongs to an affiliated Trade
Union of the DMK Party to which party the Election Petitioner also belongs. The
witnesses have also contradicted each other with reference to the vehicle alleged
to have been used by the said Nagaraj. P.W2 would state that he never saw the
vehicle whereas the election petitioner says that it is a Government car. C.W3
would also state that there was no Government vehicle. During the oral argument,
a plea was taken that an employee of TANGEDCO is not a Government employee.
However, in the written arguments, this plea has not been reiterated.
D) Issue No.5 : Excess expenditure
The election petitioner has alleged that the 1st respondent had exceeded the
expenditure limit fixed for candidates in the Tamil Nadu State Assembly Constituency.
P6 is the statement of expenditure filed by the 1st respondent. It is the contention
of the 1st respondent that as per Rule 18.17 of the Hand Book for the Returning
Officer and Hand Book for the candidates, the candidates are required to maintain
the daily expenditure and same is to be checked by the expenditure observer/
shadow observer. However, the election petitioner has not contemporaneously
made any complaint to the Election official. The expenses submitted by the election
petitioner had been accepted after scrutiny by the election officials. With regard to
the wall paintings, photographs had been produced and the 1st respondent would
submit that these photographs are inadmissible in as much as the certificate dated
04.09.2023 does not comply with the requirements of Section 65- B of the Indian
Evidence Act, 1872. The 15-photographs marked as Ex.P16, according to the
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
1st respondent are all fabricated as there are interpolations. P.W5 through whom
Ex.P16 photographs had been marked would state that he has filed a report to the
Returning Officer and that report had been filed into Court. However, there is no
such document filed into Court and this would clearly prove that the petitioner is
setting up a false case. Although the witness would state that he had got an estimate
for sum of Rs.20,00,600 from the painter, Surya, he would however conceded that
no written estimate was received from the said Surya. The witness was not able
to recollect as to when and how the extent of 22,330 sq.ft. was measured. Once
again, the 1st respondent has pointed out that no complaint about the above has
been given to the Returning Officer. P.W2 has admitted that he has no personal
knowledge about the painting done in the other villages except Usaripatti Village.
Once again, there is no written complaint to the Returning Officer. The witness
P.W5 would submit that he has in all taken 15 photographs which are marked
as Ex.P16 Series. The 1st respondent would contend that there is absolutely no
materials submitted with reference to the wall paintings put up on the government
buildings and the paintings put up on the flyovers.
E) Issue No.6: Painting on public properties
The 1st respondent would submit that the contents of Ex.P7 are rather vague
and do not relate to wall posters on public properties alleged to have been put
up by the 1st respondent. P.Ws.1, 2 and 5 have spoken about the same and the
relevant response in cross examination has been extracted. The 1st respondent
would submit that a perusal of the above would clearly show that there is no material
to indicate as to which public building the wall poster has been put up and there is
no document to prove this allegation.
F) Issue No.7: Rejection of Ballots
The 1st respondent would submit that Ex.C2 which has been filed through
the Returning Officer would clearly show the round wise tally and the final tally of
postal ballot votes in Krishnagiri Constituency. Ex.C2 is the document recording the
tally of votes polled by postal ballots. In this tabulated statement, there is a table
for each round and the tally has been typed on the reverse. The counting agents
of the petitioner and the 1st respondent have also signed in the serial numbers
1 and 3. Ex.C3 is the representation of the Election Petitioner stating that 700
votes which are invalid votes have to be counted. Ex.C6 is a printed format with
a blank pre-prepared sheet by the election petitioner. This according to the 1st
respondent would show that it was made for the purpose of the case. Ex.P10 is the
pre-prepared format by the Election Commission. The blanks are filled by hand and
a different version is given that 605 postal votes have been wrongly rejected. It is
the argument of the 1st respondent that a perusal of Exs.C2 to C6 would clearly
show how the counting process of postal ballots had been done in accordance with
the law. A perusal of Exs. C7 and C8- CCTV footages would also clearly display
how the Assistant Returning Officer has segregated the valid and invalid votes
and showed each ballot paper before the same was either counted or rejected.
Therefore, the allegation that there has been improper rejection of postal ballots
is totally false. The relevant portions of the evidence of P.Ws.1 and 2, CW2 and
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
R.W1 have also been set out. The 1st respondent would contend that 605 postal
ballots have been rightly rejected and after having participated in its counting, the
petitioner is now seeking a roving enquiry. The election petitioner had pointed out
that 80 postal ballot papers have been rejected on the ground that there was no
signature or attestation. The Returning Officer has explained that these ballot papers
have come from other constituencies without signature or attestation and since this
contingency does not fall under any of the specified headings, it has been marked
against the head “others”. The petitioner alleges that the tally of votes had not
been informed by the Returning Officer. The response to the above is that there is
no Rule which says that the candidates should be informed about the postal ballots.
It should be filled up in Form 20.
18.2 As regards the EVMs in Polling Station Nos. 79 and 95 and the alleged
deficiencies and irregularities, the CCTV footages marked as Exs.C7 and C8 would
clearly show the manner in which the counting had taken place. The control units
marked as Exs.C13 and C14 have been switched on and tested by the Courts. The
1st respondent would further go on to state that Ex.C15, 16 and 17 are relevant.
Ex.C16 which is Form 17C clearly shows that the total number of votes polled is
607. However, in Ex.C15, the total number is shown as 657. 50 numbers had been
added which related to the mock poll and if these 50 votes are deducted, it would be
607 valid votes. P.W7 has deposed that the election officials when asked to specify
the number of mock votes that could be cast by each booth agent. The Returning
Officer had informed them that 5 to 10 mock votes would be polled by each booth
agent.
18.3 With reference to Polling Station Number 95, it is the contention of the 1st
respondent that the counting was done on the basis of VVPAT. Ex.C17-Form-17 C
Part II tallies for both the EVMs in Polling station Nos.79 and 95. Therefore, the
allegations made regarding the above are totally without any basis. The evidence
of P.Ws.1,2,7 and C.W2 in this regard has been quoted by the 1st respondent.
Ultimately, the 1st respondent had contended that there was no cause of action
for filing the election petition and the alleged cause of action is purely imaginary.
Therefore, the election petition does not contain any material facts or particulars
as required under Section 83 of the R.P.Act. The oral and documentary evidence
produced on the side of the election petitioner is self-serving and cannot be relied
upon. On the contrary, Exhibits that have been marked through the Returning Officer,
namely, C16 and C17 make it very clear that the Returning Officer has acted in
accordance with the Conduct of Election Rules and no exception can be taken to
the same. No grounds have been made out to interfere with the election and the
election petition deserves to be dismissed.
18.4 The first respondent’s counsel has relied on the following judgments :
i. (2007) 3 SCC 617 – Virender Nath Gautam Vs
Satpal Singh and Others;
ii. (1982) 1 SCC 691 – Jyoti Basu & Others Vs
Debi Ghosal & Others;
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
iii. (2012) 4 SCC 194 – Jittu Patnaik Vs Sanatan Mohakud & Others;
iv. (1976) 1 SCC 687 – Bhabhi Vs Sheo Govind & Others;
v. (2014) 5 SCC 312 – Arikala Narasa Reddy Vs
Venkata Ram Reddygari & Others; and
vi. (2024) SCC Online SC 519 – Karikho Kri Vs Nuney Tayang & another.
O.A.No.27 of 2024 :
19. O.A.No.27 of 2024 in E.L.P.No.9 of 2021 had been filed to appoint an
Registrar to scrutinize the 605 rejected postal ballot votes which have been marked
collectively as Ex.C4. This Court had allowed the said application on 25.03.2024
considering the fact that the returned candidate, namely, the 1st respondent herein
had won by slender margin and also on account of the fact that at that stage no
evidence had been produced to prove that the election petitioner or his agents had
been apprised with the reasons for rejection. The said order was challenged before
the Hon’ble Supreme Court in Civil Appeal No.4843 of 2024 in SLP(C).No.8233 of
2024 and the Hon’ble Supreme Court, by its order, had allowed the appeal and set
aside the order dated 25.03.2024, directing this Court to decide the election petition
on its merits as also O.A.No.27 of 2024. Therefore, this Court is considering the
said application on merits as directed by the Hon’ble Supreme Court.
20. The main grievance of the election petitioner with reference to the postal
ballots was that the same had been rejected indiscriminately and without assigning
proper reasons and that the reasons for rejection apart from not being recorded,
were also not communicated to the candidate or his agents. A tabulated statement
had been issued to the applicant on 02.05.2021 stating the reasons for rejection of
525 postal ballot votes. However, with reference to 80 votes, the same has been
rejected under the head “others” without specifying the reasons. This, according to
the election petitioner, was contrary to the procedures contemplated under the C.E
Rules, 1961. The petitioner would submit that the category “others” is not provided
for under Rule 54A (11) of 54 A(8) of the Rules. Rule 54-A(8) of the Rules provides
5 reasons for rejecting the postal ballot votes and nowhere has the Returning Officer
being given the authority to record the votes under the heading “others” giving
discretion to the Returning Officer to reject the votes. 605 votes, which have been
rejected, have been submitted to this Court as Ex.C4 and is in the custody of the
Court. C.W2, the Returning Officer to a question as to whether the details were
available on the 13C cover would answer that only if the details on 13 C cover are
correct, it would be opened to verify as to whether 13C declaration form and 13 B
ballot papers are kept separately. Similarly only if the Serial Numbers on 13A and
13B, tally the ballot papers would be opened. If the serial numbers mentioned on
the cover of 13B and the serial number mentioned inside the ballot paper differ, the
votes would be rejected. The Returning Officer has also given her explanation for
categorizing some of the postal ballots under the category “others” by stating that
the postal ballots received from the other constituencies without attestation, without
signature of the voter either in the ballot or in the cover were all rejected under the
category “others”, as the Form given to them did not contain such a category and
therefore, since the Form given to them, contained a category termed as “others”
in serial number 11, these votes were entered into this category.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
21. Therefore, in the light of the directions issued by the Hon’ble Supreme Court
in Civil Appeal No.4843 of 2024, this Court after reserving the orders had decided to
scrutinize the 605 postal votes and verify if the reasons for their rejection has been
properly tabulated. This Court also decided to examine the photographs taken at
the time of the counting of the postal votes and the videographs, and to understand
the functioning of the electronic voting machine, in order to consider the issue with
reference to the polling station Nos.79 and 95.
22. On the Court’s direction on 11.12.2024, Mr.Niranjan, learned standing counsel
for Election Commission of India, Mr.V.Sreenivasa Rao, Deputy Manager, Bharat
Electronics Limited, Bangalore and Mr.K.Marimuth, I-NET Secure Labs Pvt.Ltd.,
CCTV and Technical Executive, who were present before this Court, had assisted the
Court in going through the postal ballots. Thereafter, the Box No.157 was opened
in the presence of the Court, Officials from the Election Commission of India and
the members of the Registry. This exercise commenced at 3.40 pm and the box
was closed at 5.00.pm. Thereafter, the postal ballots were put back into the box
and locked in the presence of the aforementioned persons. The key to the box was
retained by this Court. On the next day, i.e on 12.12.2024, Mr.V.Sreenivasa Rao, the
Deputy Manager, Bharat Electronics Limited had demonstrated and explained how
votes are polled in the EVMs. Thereafter, the matter was adjourned to 30.12.2024
for perusing the rejected postal ballots in order to verify as to whether the Rules
had been followed. On 30.12.2024, Mr.Ravi, Deputy Registrar, Madras High Court
and other officials were present. The perusal of the postal ballots had commenced
at 11.50 am. and concluded at 04.00 pm. The only exercise undertaken by this
Court was to verify as to whether the reasons for rejection had been recorded on
the postal ballots. All 605 votes were individually examined. Therefore, this Court
has considered the request made in O.A.No.27 of 2024. This Court, without issuing
directions to the Registrar has undertaken the said exercise by itself. The EVMs
and postal ballots having been marked as exhibits, the exercise was undertaken
by the Court.
Discussion :
23. Heard the learned counsels on either side and perused the materials
available on record.
24.The petitioner has filed this election petition seeking to declare the election of
the 1st respondent to the No.53, Krishnagiri Assembly Constituency in the State of
Tamil Nadu on 02.05.2021 as illegal, void and liable to be set aside and to declare
the petitioner as duly elected to No.53, Krishnagiri Assembly Constituency in the
State of Tamil Nadu with effect from 02.05.2021 and for costs.
Findings :
25. Considering the fact that the arguments have been addressed issue
wise, this Court is returning its findings on the basis of the issues framed, the case
of either party and the evidence both oral and documentary are set out under each
issue with the conclusion.
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ISSUE No.1 & 2 :
(a)
The issue Nos.1 and 2 are as follows:
“1. Whether the election of the 1st respondent from the No.53, Krishnagiri
Assembly Constituency to the 16th Tamil Nadu Legislative Assembly,
2021 is liable to be declared as illegal, ab initio void and set aside?
2. Whether the 1st respondent has willfully suppressed his assets in his
nomination form and affidavit thereby materially affecting the election of
the 1st respondent and rendering his election liable to be set aside under
Section 100(1)(d)(i) & (iv) of the Representation of People Act, 1951?
(b) Petitioner’s case:
It is the case of the petitioner that the 1st respondent along with his 3 brothers
had owned a total extent of 2 acres and 8 cents of agricultural land in S.No.207/2A,
Rettiyur Street, Rettiyur Village, Vaniyambadi Taluk, Thirupattur District which was their
ancestral property. The aforesaid property was bequeathed to the 1st respondent
and his brothers by his father through a registered Will dated 25.07.1997 and
on their father’s demise, the Will had come into force. The registered Sale Deed
dated 25.10.2004 executed by the 1st respondent and his brothers in favour of one
T.Mahendran would reflect the same. The 1st respondent and his brothers had
appointed one A.Murugan as their Power Agent to sell the above property which
had been divided into plots. Between the years 2004-2012, an extent of 78,977
sq.ft ( acre) was sold to various persons by the said Power Agent. Out of the total
extent of 2.08 acres, only an extent of 1.81 acre was sold leaving behind an extent
of 23 cents. The patta in respect of the property stood in the name of the 1st
respondent’s father, Krishnamurthy. The 1st respondent has deliberately suppressed
this fact. It is the contention of the petitioner that this suppression has materially
affected the election. Considering the fact that the margin of victory between the
two was only 794 votes, the petitioner would submit that the nomination papers of
the 1st respondent has been improperly accepted by the election authorities.
(C) Response to the above:
The 1st respondent would submit that the property was no longer under the
ownership of the 1st respondent as he had alienated the same much before the
submission of the nomination Form. That apart, the transactions have been recorded
in the encumbrance certificate and therefore, the allegation of the petitioner was
totally misconceived. He would further submit that the allegations are rather vague.
(d) Oral evidence on petitioner’s side.
(i)
P.W.1 Senguttuvan
P.W1 has marked Ex.P2 (the same was marked subject to proof and relevancy)
which is the nomination form filed by the 1st respondent including Form-26 Affidavit.
The document has been marked along with the Certificate under Section 65B of the
Indian Evidence Act. P.W1 would state that the 1st respondent has suppressed his
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landholdings in Form-26 Affidavit and his nomination has been improperly accepted
by the Returning Officer. P.W1 would once again reiterate the contentions made in
the petition with reference to issue Nos. 1 and 2 and state that the 1st respondent
had filed a false affidavit. Therefore, the acceptance of his nomination was improper,
illegal and contrary to law.
(ii) During his cross examination, to a question as to how the petitioner would
state that the first respondent is the owner of he land when the patta stood in the
name of Krishnamurthy, the petitioner would respond that the patta stands in the
name of the 1st respondent’s father, Krishnamurthy.
(iii) To another question as to what documents had been filed to show that the
23 cents of land belonged to the 1st respondent, P.W1 has responded that the
same can be deduced from the Encumbrance Certificate and the patta that
had been issued i.e., Exts.P5 and P4 respectively. The patta stands in the name
of the 1st respondent’s father. To a suggestion that since 23 cents did not stand
in the name of the 1st respondent, there was no necessity to include the same
in the Form-26, P.W1 would respond that this property was being jointly enjoyed
by the 1st respondent and his brothers without being subdivided and therefore it
ought to have been included in the Form-26 affidavit. P.W1 would state that he
had first seen Ex.P2-nomination paper of the 1st respondent only after the election
when it was downloaded from the website of the Election Commission and he
would fairly admit that no objection had been raised on the date of the scrutiny of
the nomination papers.
(iv) In the proof affidavit in lieu of chief examination, the 1st respondent
would submit that it is totally incorrect to state that only an extent of 1.81 acres
out of total extent of 2.09 acres in Survey No.207/2A had been sold. The
1st respondent would submit that on the date of scrutiny of nominations, the petitioner
has not raised any objection as to the non-inclusion of the property in the Form-26
Affidavit. The witness during his cross examination was shown Ex.P14-Sale Deed in
favour of Mahendran through the Power Agent of the 1st respondent and his brothers
and asked as to whether there was any other Sale Deed apart from Ex.P14 with
reference to the said property and the answer was in the negative. Thereafter, when
a specific question was put that after the sale, an extent of 23 cents still remained
with the family, the 1st respondent would categorically deny the same.
(e) Documentary evidence:
A perusal of Ex.P2-the Nomination Form of the 1st respondent which
includes Form-26 affidavit would indicate that the 1st respondent has clearly stated
that he does not own agricultural lands, ancestral lands, self acquired properties
or properties that have been purchased by him. Against all these columns, the
1st respondent has stated as “பொŠொருந்தாாது
பொŠொருந்தாாது”. The petitioner would also rely upon
Ext.P4-Patta and Ext.P5-Encumbrance Certificate to contend that the first respondent
continues to own an extent of 23 cents.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(f) Conclusion :
(i) A perusal of the pleadings, oral and documentary evidence as also
the arguments would indicate that Form-26 Affidavit filed by the 1st respondent
before the Election Officer is claimed to be a false affidavit, in as much as the 1st
respondent has not disclosed the fact that an extent of 23 cents continues to remain
with the petitioner. A reading of the petition and the oral evidence would show that
the petitioner has come to Court with a case that out of the total extent of 2.08
acres of the land belonging to the 1st respondent and his brothers, only an extent
of 1.81 acre had been sold leaving behind an extent of 23 cents. However, in the
written arguments, the petitioner would state that only an extent of 1.56 cents has
been sold leaving behind an extent of 89 cents of land in the hands of the petitioner.
This measurement is not pleaded either in the petition or in the evidence and the
balance land said to remain in the hands of the petitioner is shown as 23 cents. The
petitioner has not extensively cross examined R.W1 to prove the willful suppression.
In the course of arguments, the 1st respondent would submit that the excess land
constitutes the OSR and roads near the house sites which had been formed into
a layout of housing plots for which OSR as well as pathways are mandatory. That
apart, the 1st respondent would submit that this does not amount to suppression,
leave alone a willful suppression, as no land remains with them. This Court has to
consider as to whether the non-disclosure of this fact would materially affect the
election.
(ii)
The 4 boundaries would further clarify that roads have been created for
accessing these housing plots. The total measurement of this 15’ feet pathway
has not been factored into the total extent of land that has been conveyed by
the Power Agent to various persons. The petitioner has not come forward with a
categoric case that the 1st respondent continues to hold a fixed extent of land and
has simply arrived at the figure of 23 cents by subtracting the total lands sold from
the total land holding. No doubt, in the counter, the 1st respondent has not come
out with specifics regarding his holdings. The 1st respondent has clearly stated
that he does not own any land in the said survey number. Therefore, the onus is
squarely upon the petitioner to prove that the 1st respondent continues to retain the
property and also to state that the extent of land that the 1st respondent continues
to hold. The petitioner has taken a plea that the first respondent has adduced
evidence and advanced arguments without there being a pleading to that effect in
the counter statement. However, the petitioner who had alleged suppression, has
not proved the same and has simply produced Exts.P4 and P5 to substantiate their
claim. The petitioner has therefore failed to not only prove the exact extent of land
that is retained by the petitioner, but also the fact that by not divulging the same
in the Form-26-Affidavit, the 1st respondent has materially altered the result of the
election.
(iii) A recent judgment of the Hon’ble Supreme Court reported in (2024)
SCC Online 519 [Karikho Kri Vs Nuney Tayang & another], this was a case
where the election of the independent candidate Karikho Kri was sought to be set
aside on the ground that the nomination submitted by him was improperly accepted
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
by the Returning Officer. The allegation, like in the instant case, was that
Karikho Kri had failed to disclose material particulars in the affidavit filed in Form
26, inasmuch as he had not disclosed the details of the vehicles owned by his
wife and son. The Itanagar Bench of the High Court of Assam, Nagaland, Mizoram
and Arunachal Pradesh held that the non-disclosure of information amounts to a
corrupt practice within the meaning of Section 123(2) of the R.P.Act, and held that
the acceptance of his nomination was improper. The High Court answered the issue
as to whether the non-disclosure was of a substantial nature affecting his election
against the returned candidate and held that the disclosure of information as per
Form 26 of the C.E.Rules was fundamental to the concept of a free and fair election.
(iv) After discussing the provisions of Section 33 – Scrutiny of nomination, Section
100 – Grounds for declaring the election to be void, and Section 123 – Corrupt Practices
as set out in the R.P.Act and the various judicial precedents and relied on the earlier
judgment of the Hon’ble Supreme Court in the case of Vashist Narain Sharma Vs
Dev Chandra reported in (1954) 2 SCC 32, where a three-Judge Bench observed
as follows :
“that the burden of proving that the improper acceptance of a nomination has
materially affected the result of an election would arise in one of three ways : (i)
where the candidate whose nomination was improperly accepted had secured less
votes than the difference between the returned candidate and the candidate securing
the next highest number of votes,
(ii) where the person referred to above secured more votes, or (iii) where the
person whose nomination has been improperly accepted is the returned candidate
himself. It was held that in the first case, the result of the election would not be
materially affected because if all the wasted votes were added to the votes of the
candidate securing the next highest votes, it would make no difference to the result
and the returned candidate would retain the seat. However, in the other two cases,
the result may be materially affected and insofar as the third case is concerned, it
may be readily conceded that such would be the conclusion.”
The Bench went onto the rely upon the Constitution Bench judgment of the
Apex Court in Hari Vishnu Kamath Vs Syed Ahmad Ishaque reported in (1954) 2
SCC 881, where the Bench considered the scope of enquiry under Section 100(1)(d)
of the R.P.Act and observed that an election could be set aside when two conditions
were satisfied. The conditions were extracted by the Bench in the following manner:
“It must, firstly, be shown that there has been improper reception or refusal of
a vote or reception of any vote which is void, or non-compliance with the provisions
of the Constitution or the Act of 1951, or any rules or orders made thereunder,
relating to the election or any mistake in the use of the prescribed form and it must
further be shown that, as a consequence thereof, the result of the election has been
materially affected. The Bench observed that the two conditions are cumulative, and
must both be established. It was further observed that the burden of establishing
them is on the person who seeks to have the election set aside.”
35
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
In the instant case the petitioner has not been able to categorically assert
with the evidence that an extent of 23 cents continued to remain in the name of
the petitioner and the non-disclosure of this has materially affected the result of the
election. The judgment relied on by the petitioner viz., Krishnamurthy Vs Sivakumar
& Others reported in [(2015) 3 SCC 467] was a case where full particulars of the
criminal cases against the returned candidate had not been disclosed.
The two
Judges observed that criminalisation of politics was absolutely unacceptable and
corruption in public life was ‘indubitably deprecable’. The two Judges observed that :
“ It is not every failure to disclose information that would constitute an undue
influence. In the context of criminal antecedents, the failure to disclose the particulars
of any charges framed, cognizance taken, or conviction for any offence that involves
moral turpitude would constitute an act that causes undue influence upon the voters.”
Ultimately, the two Judges observed that the disclosure of criminal antecedents
of a candidate at the time of filing nomination was imperative. Therefore, that was a
case where criminal antecedents, which would have definitely weighed in the minds of
a voter, had been deliberately suppressed, thereby, materially altering the result of the
election. However, in the case on hand, the petitioner who claims suppression, has
not proved the same and has also not proved that the non-disclosure has materially
altered the results. Therefore, the judgment cited by him would not come to the aid
of the petitioner. Accordingly, Issue No.1 & 2 are answered against the petitioner.
ISSUE No.3
26. Issue No.3 is as follows:-
“3. Whether the 1st respondent is guilty of having been committed the
corrupt practice under Section 123 of the Representation of
People Act, 1951, thereby rendering the election of the 1st respondent
liable to be set aside under Section 100(1)(b) & (d) (ii)?”
(a) Petitioner’s case:
The petitioner’s contention is that the 1st respondent, his Chief Election Agent
and his booth agents along with their party workers had indulged in distributing a
sum of Rs.500/- to the voters in the Krishnagiri Assembly Constituency as an illegal
gratification for the purpose of securing their votes along with the pamphlets. It is
the petitioner’s contention that such distribution has taken place with the consent,
knowledge, instruction and authorization of the 1st respondent. The incidents of
such distribution of cash have been set out in the form of a tabulated statement,
which is extracted herein below:
36
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Illegal
gratifi-
cation
Gratification
to Voters
1
Akbar
Govindha
chetty Street,
Kaveripattinam
Vinayagam,
Kaveripattinam
AIADMK Party
Worker
Resi-
dence
of the
voter
04-3-2021
7.30 PM C. Settu
2
Madhavan
Kottai Street,
Kaveripattinam
Vinayagam,
Kaveripattinam
AIADMK
Party
Worker
Resi-
dence
of the
voter
04-3-2021
8.30 PM T.Vasudevan
3
Raja
Anna Nagar,
Errahalli,
Kaveripattinam
Vinayagam,
Kaveripattinam
AIADMK
Party
Worker
Resi-
dence
of the
voter
04-3-2021
9.15 PM S. Prakash
4
Prakash
Savuloor
koot road,
Santhapuram
Panchayat,
Kaveripattinam
Vinayagam,
Kaveripattinam
AIADMK
Party
Worker
Resi-
dence
of the
voter
04-3-2021
9.30 PM M.Chandra
Sekaran
5
Thirupathi
Mittahalli,
Kaveripattinam
Vinayagam,
Kaveripattinam
AIADMK
Party
Worker
Resi-
dence
of the
voter
04-4-2021
7.00 AM S.Krishna
moorthy
6
Varun
kumar
Thomson
pettai,
Kaveripattinam
Vinayagam,
Kaveripattinam
AIADMK
Party
Worker
Resi-
dence
of the
voter
04-4-2021
7.20 AM K. Dharma
Kumar
7
Dinesh
Shanmuga
chetty Street,
kaveripattinam
Vinayagam,
Kaveripattinam
AIADMK
Party
Worker
Resi-
dence
of the
voter
04-4-2021
8.15 AM C. Settu
8
Yaaraf
Govindhapuram
extension,
Kaveripattinam
Vinayagam,
Kaveripattinam
AIADMK
Party
Worker
Resi-
dence
of the
voter
04-4-2021
8.30 AM M.Velumani
37
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Therefore, it is the contention of the petitioner that the above said 8 persons had
received cash from one Vinayakam who is an AIADMK worker and the witnesses to
such distribution of cash have also been detailed in the aforesaid tabulated column.
It is the contention of the petitioner that by distributing money for votes, the 1st
respondent had indulged in corrupt practice as contemplated under Section 123 of
the RP Act thereby rendering the 1st respondent’s election liable to be set aside.
(b) Response to the above:
The 1st respondent would submit that the petitioner is trying to make out
a case of distribution of cash on the basis of certain photographs
which is not backed by substantial proof. The 1st respondent therefore called upon
the petitioner to prove beyond reasonable doubt that the photographs proves the
distribution. He would submit that the petitioner has nowhere described/specified
the names of the agents of the 1st respondent with their full particulars indicating
that they had indulged in corrupt practice except for a general statement. He would
further submit that the said Vinayakam does not belong to AIADMK and that there
is nothing to connect him with the party. The material details regarding the persons
to whom the money was distributed, the amount so distributed, the person on whose
behalf the money has been distributed etc.,have not been proved beyond reasonable
doubt. Therefore, the 1st respondent would submit that the petitioner has failed to
prove that he had indulged in corrupt practice for obtaining votes.
(c) Oral evidence:
(i)
The petitioner as P.W1 in his chief examination has more or less reiterated
the statements made in the Election Petition. In his Chief examination once again,
the said facts have been set out.
(ii)
In his cross-examination, to a pointed question regarding the absence of
details in the election petition about the date on which the money was distributed
to voters, the petitioner elaborated that the money was distributed on 03.04.2021
and 04.04.2021 all over the constituency, and specifically in Kaveripattinam to Akbar,
Raja, Tirupati, and Prakash.
(iii) To a question as to whether the witnesses listed in the tabulated statement
were his party workers, the petitioner, while admitting the same, also clarified that
they are members of the public.
(iv) P.W2 (S.Tamilselvan) The Chief Election Agent of the Election Petitioner
has not deposed about the alleged illegal gratification.
(v) P.W3 (S.M.Chandrasekar) has been examined to prove the contentions that
the 1st respondent has indulged in canvassing for votes by giving illegal gratification.
He would state that, while he was canvassing for votes for the petitioner at Govinda
Chetty Street, he was informed that one Vinayakam, who was a spokesperson of
the AIADMK was distributing pamphlets along with Rs.500/- notes for and on behalf
of the 1st respondent at Savalurkoot Junction. He would submit that he had gone
to the spot where he saw Vinayakam distributing Rs.500/- notes to Akbar asking
him to vote for the 1st respondent.
38
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(vi) P.W4 (M.Velumani) has also been roped in to give evidence about the illegal
gratification. He would state that he had seen one Yaraf receiving the money from
Vinayakam, the AIADMK worker who was asking him to vote for the 1st respondent
at Govindapuram Extension. P.W.4 would submit that he had been appointed as
a counting agent or election agent of the election petitioner and that he was only
a District-In-charge who moved around at his own discretion. He would also admit
that no complaint has been given to the Returning Officer like the case of P.W.3.
(d) Documentary evidence:
Ex.P15 photograph is the only document that has been filed on the side of the
petitioner to show that there has been an illegal gratification by the 1st respondent
through the distribution of money in exchange for votes. There is nothing to
show that a complaint had lodged with the Election authorities regarding this illegal
gratification.
(e) Conclusion:
(i)
The petitioner would contend that the 1st respondent had indulged in illegal
gratification by distributing money to the voters through his two agents, namely
Vinayakam and Arumugam. The petitioner’s agent P.W.3, M.Chandrasekaran claims to
have taken the photograph-Ex.P15 in his mobile phone, which conveniently has fallen
into the water. He would state that he had taken Ext.P15 showing the distribution
of cash to one Akbar by Vinayagam. Further, though he claims that the fact was
informed to the petitioner on the very same day, it is rather strange that the witness,
P.W.3 who had taken the photograph in his mobile phone, has not deemed it fit to
forward this photograph to the petitioner by whatsapp or by otherwise.
(ii)
In fact to a question that was put by the Court to the witness as to
whether at his request the persons giving and receiving the money had posed
for the photograph, the witness has affirmed the same. However, during the cross
examination of the witness, much later in point in time, he retracted the admission
made to the Court, which is clearly an afterthought.
(iii) That apart, a mere perusal of Ex.P15-photograph would clearly show that the
persons in the photograph have been asked to stand for a photo. The photographs
is supposed to have been taken when canvassing of votes was at its peak. Beyond
and around the persons standing in the photograph, there is absolutely no activity
to show that an election campaign was on, particularly when it is alleged that it
was during the canvassing, the money was distributed. Further, the said Vinayagam,
who is the person allegedly distributing the money, has later joined the DMK party
to which the petitioner belongs.
(iv) The witness, in his answer to the Court, has admitted the fact that persons
had posed for a photograph. The mobile phone in which photograph is alleged to
have been taken has also not been made available and the excuse given is that it
has fallen into the water.
39
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(v) As stated earlier, to a specific question put by the Court as to whether
the witness has asked them to stand for a photo, the witness had admitted the
same. He would then state that Rs.500/- notes were also distributed to Prakash at
Savalurkoot Junction. He was unable then, to take a photo as there was a large
crowd.
(vi) In the cross examination, he would submit that he had seen the campaigning
and the illegal gratification being given to the voter by Vinayakam and he was there
at the spot at 7.30. There is nothing to show either in the chief examination or in
the cross examination as to the date or time on which the photograph was taken. In
response to a question as to why the phone was not produced, he would submit that
the same had fallen into the water. The witness admits that he has not forwarded
the photographs to the Election Petitioner on the very same day that he claims he
had taken the same.
(vii) In the petition as well as in the proof affidavit of P.W1, 8 persons are
said to have received illegal gratification from the 1st respondent’s agent along with
two witnesses. However, the petitioner has chosen to examine only two witnesses,
both with reference to the alleged illegal gratification at Govinda Chetty Street. In
the tabulated statement, P.W3 (Chandrasekar) is shown as the person witnessing
the illegal gratification being given to one Prakash at Savalurkoot Road and it is
C.Settu who is shown as the witness regarding the alleged illegal gratification to
Akbar at Govinda Chetty Street. The said Settu, however, has not been examined
on the side of the petitioner. However, P.W.3, Chandrasekaran has adduced evidence
regarding the alleged illegal gratification given to Akbar and has claimed to have
clicked Ext.P15 photograph. This would go to show that the P.W.3 who claims to
have seen Akbar having received the money could not have witnessed the same,
since even according to the election petitioner, it was one Settu who had witnessed
the exchange of money from the AIADMK worker, Vinayakam to Akbar. Therefore,
the petitioner has not proved the exchange of money for votes through concrete
evidence. Therefore,
Issue No.3 is answered against the petitioner.
ISSUE No.4 :
27. Issue No.4 is as follows:
“4. Whether the 1st respondent is guilty of having been committed the corrupt
practice under Section 123(7) of the Representation of People Act, 1951, thereby
materially affecting the election of the 1st respondent and rendering it liable to be
set aside under Section 100(1)(b) & (d) (ii) of the Representation of Peoples Act,
1951 ? ”
(a) Petitioner’s case:
It is the contention of the petitioner that the 1st respondent had utilized the
services of one Nagaraj who is a Supervisor of the Tamil Nadu Electricity Board, now
called TANGEDCO for canvassing on his behalf across the constituency between
the period 05.03.2021 and 25.03.2021 with a T.Shirt printed with the AIADMK
party symbol. The petitioner would allege that the said Nagaraj had misused the
40
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Government car for canvassing for the first respondent and the same has been
witnessed by the petitioner and his Chief Election Agent, Tamilselvan. C.W3 a third
party has been examined to prove the same. He claims that he had witnessed the
same on 24.03.2021 at Aalapatti within the Krishnagiri Constituency, where the said
Nagaraj was campaigning sporting an AIADMK party towel. In short, the petitioner
would contend that a Government employee has openly advertised his allegiance
to a particular party.
(b) Response to the above:
The said Nagaraj is not a Government servant and cannot be treated as an
official machinery of the State. The 1st respondent would further submit that if
the same had taken place, it was well open to the petitioner to lodge a complaint.
However, the said complaint has not been lodged. That apart, the petitioner has not
been able to prove that Nagaraj is a public servant and was campaigning misusing
his post. The 1st respondent would rely on the judgment reported in (1980) DLT
337 – ILR 1980 Del 1345 [C.M.Stephen Vs Atal Behari Vajpayee] which also dealt
with a case involving the misuse of official machinery.
(c) Oral evidence:
To prove the above said fact, the petitioner has chosen to examine C.W3, Senthil
Kumar. During the cross examination, he would state that he had seen Nagaraj
canvassing on Wednesday, the 24th day of March 2021 at Aalapatti which falls within
the locality of Krishnagiri. In the cross examination by the 1st respondent’s counsel,
he would submit that he is employed as a Driver with the Tamil Nadu State Transport
Corporation. He would submit that in the year 2021, he was plying between the
Tiruvannamalai-Bangalore road and that on the said date i.e 24.03.2021, he was
on his weekly off. He would also admit that he has no proof to show that Nagaraj
was canvassing for the AIADMK party. He would admit that he is the member of
the Trade Union, called LPF, which is an affiliate of the DMK party to which the
election petitioner belongs. During the cross examination by the learned counsel
for the petitioner, a specific question was put as to whether he was a member of
any political party, he had denied the same. Therefore, the evidence is sought
to be disregarded on the ground that he is an interested witness.
(d) Conclusion :
(i)
The allegations made in the election petition is that, Nagaraj, a Supervisor
in the Tamil Nadu Electricity Board, now TANGEDCO, had canvassed for the
1st respondent from 05.03.2021 to 25.03.2021 by wearing a T-Shirt, on which the
AIADMK party symbol was printed; that he had campaigned at Kaveripattinam
Town, Aaalapatti, Pazhakudi, Madipatti, Vengaleri, Kuppan Road, Krishnagiri Town
by using the Government car. In the election petition, the petitioner would state that
it was the 1st respondent and his Chief Election Agent who had witnessed this, and
neither in the election petition nor in evidence of PW1, is any reference made to
C.W3, Senthil Kumar.
(ii)
In the proof affidavit in lieu of Chief examination, P.W1 would state that
Nagaraj’s wife was a former MLA of the Uthangarai Constituency from the AIADMK
41
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
party and that she held office between 2011 to 2016 and 2016-2021. In his cross
examination, he would submit that Nagaraj was a voter in the Krishnagiri Constituency,
but her wife stood for election in Uthangarai. In his cross examination, he had,
however, admitted that he had not given any complaint in writing to the Election
Commission regarding the misuse of the official petition for campaigning.
(iii) P.W2 who is the petitioner’s Chief Election Agent would submit that he has
proof to show that Nagaraj was a voter in the Krishnagiri Constituency, however,
proof has not been produced. The witness would fairly admit that nowhere have
they given details about the date when they had seen the said Nagaraj voting in
various places. The witness would also state that they have filed the document to
show proof that Nagaraj had campaigned along with the petitioner (however, this
document had not been produced / marked by the petitioner).
(iv) P.W2, in response to a question that the said Nagaraj had no connection with
Krishnagiri and that he was not a voter from the said Constituency, has responded
that his wife was a Chairman of the Krishnagiri Union in the year 1993. The petitioner
has roped in C.W3 to adduce evidence with reference to the campaigning by Nagaraj.
This witness would state that he had seen Nagaraj at Kaveripattinam Town (answer
to questions 20 to 22).
(v) The petitioner, who had also contended that the said Nagaraj was using
the official vehicle for campaigning, has not let in any evidence, either documentary
or oral, to prove the same.
(vi) Therefore, from the above, it is clear that the election petitioner has not
come forward with a definite case. The case pleaded is that Nagaraj, who is a voter
of Krishnagiri Constituency and a Supervisor in the Tamil Nadu Electricity Board,
has misused his official position by using the car for campaigning and that apart,
wearing a T-Shirt embossed with the AIADMK party symbol and with a towel also
embossed with the AIADMK party symbol. However, none of these statements have
been substantiated by proof and the oral evidence is also vague. Further, witnesses
have contradicted each other. The pleadings in this regard are also very sketchy and
therefore, Issue No.4 is also answered against the petitioner, as this petitioner
has not been able to prove his contention that the first respondent has indulged in
corrupt practices.
Issue Nos. 5 and 6:
28.1 The 5th and 6th issue pertain to excess election expenditure incurred by
the 1st respondent and plastering posters on Government buildings and properties
which are as follows:
“5. Whether the 1st respondent has exceeded his permitted election
expenditure and thus violated Rule 90 of the Code of Conduct Rules,
1961 r/w Section 77 of the Representation of Peoples Act, 1951,
thus committing a corrupt practice under Section 123(6) rending his
election liable to be set aside under Section 100(1)(b) & (d) (ii), (iv)
of the Representation of Peoples Act, 1951 ?
42
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
6.
Whether the 1st respondent, and with his knowledge, consent and
direction, his agents and other party workers have plastered the walls
of Government buildings and public properties with posters thereby
violating the Model Code of Conduct, thus rendering the election of
the 1st respondent liable to be set aside under Section 100(1)(d)
(iv) of the Representation of Peoples Act, 1951 ?
(a) Petitioner’s case
i) Wall paintings:
It is the case of the petitioner that the election commission had fixed a
maximum of Rs.30,80,000/- as total election expenditure under different categories
for each candidate. The petitioner would submit that the 1st respondent had spent a
sum of Rs.20,00,600/- for wall painting advertisements alone to propagate his name
and his party symbol “two leaves”. This wall painting advertisements has been done
with the knowledge, consent and authorization of the 1st respondent. The same
has been physically verified by the petitioner, his agents and his party workers. On
such verification, the petitioner has come to learn that nearly 22330 sq.ft area has
been covered towards wall painting advertisements in all the 44 panchayats. The
petitioner would further submit that the compact disc and photos have been filed
along with the petition and that paragraph 12 of the election petition sets out in a
tabulated statement the various villages in which the wall paintings has been done,
the extent of these wall paintings and the expenses incurred. The petitioner
would contend that on the sole ground of excess expenditure, the 1st respondent’s
election deserves to be set aside as it is in excess of the amount stipulated under
Rule 90 of C.E Rules, 1961 and this has materially affected the election by swaying
the voters. This is also a corrupt practice under Section 123(6) of R.P Act and the
election is liable to be set aside under Section 100(1)(b) of R.P Act.
ii. Wall Posters
The petitioner would submit that the 1st respondent, his Chief Election Agent and
his booth agents along with their party workers acting under the consent, knowledge,
instructions and authorization and cost of the 1st respondent have plastered the walls
of the Government buildings belonging to the Krishnagiri Municipality with AIADMK
party symbols. He would further submit that on several flyovers, the 1st respondent
has
plastered
posters.
It
is
the
contention
of
the petitioner that this
plastering of walls on the public property was noticed by his election agents,
V.Vengattappan, S.Krishnamoorthy, M. Chandrasekar, S.Prakash and M.Velumani.
They had reported the same to the petitioner and his Chief Election Agent. This
act is against the Model Code of Conduct. The petitioner on 04.04.2021 had given
a representation to the respondents 16, 17 and 18 and the Election Observer of
the Krishnagiri Assembly Constituency to take appropriate action against the 1st
respondent and his party. However, no action was taken. The petitioner would
submit that the 1st respondent would have spent a sum of Rs.10/- per poster and
has willfully suppressed the same in the election expenditure account maintained
by the 1st respondent under Section 77 of the R.P Act. This has not been taken
note of the Returning Officer, the 18th respondent.
43
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(b) Response to the above:
The 1st respondent has countered this allegation by submitting that the document
which has been submitted by the petitioner in support of this allegation is dated
03.03.2021. However, the 1st respondent has filed his nomination only on 12.03.2021
and therefore, it cannot be treated as an unlawful practice.
(c) Oral Evidence:
(i)
The petitioner as P.W1 in his proof affidavit in lieu of chief examination
reiterated the contentions regarding the above two issues as set out in the election
petition and has marked photographs, the election expenditure statement of the 1st
respondent and the representation given to the 18th respondent.
(ii)
In his cross examination, the petitioner would submit that he had arrived
at a sum of Rs.20,00,600/- as an estimate for the wall paints based on the estimate
given by Surya, the painter. The petitioner would admit that he had not received
any written estimate from the said Surya and that he had made calculation on the
basis of the details given by the said Surya. He would fairly concede that in his
election petition, he has not mentioned any details regarding when he had met
with the said Surya and obtained details from his as also the manner in which he
has arrived at a total extent of 22,300 sq.ft as the area in which the wall painting
has been done.
(iii) When a question has been asked as to whether a complaint has been
lodged, the petitioner as P.W1 would submit that since the details of the expenses
were to be given after the election, he had not submitted the complaint. In response
to a question that it is mandatory that the Expenditure Observer maintains an expense
book and the same has to be updated every morning and evening, he has denied
the suggestion.
(iv) The petitioner would submit that though he has not mentioned as to when
his agents had informed him about the sticking of posters, he had however given
a complaint to the Returning Officer. He would fairly admit in his cross examination
that he has not produced any evidence regarding the sticking of the posters by
the AIADMK workers, but would hasten to add that he has done so in the election
petition. He would submit that the written objections can be given only after the
elections are over.
(v) P.W2, the Chief Election Agent would submit that he had visited one
of the Villages which is shown in the tabulated statement in paragraph 12 of the
election petition. He would submit that he had witnessed the paintings being done
in R.Poosaripatti Village of Bethathalapalli Panchayat. He would admit that no
complaint in writing was given to the election officials regarding the painting of the
AIADMK symbol on the walls. He would admit that he had not personally taken the
measurements. However, to another question as to who were present with P.W2
when measurements of the painting in R.Poosaripatti Village were taken, P.W2 had
replied that his agents, Dharmakumar and Govindraj were present at that time,
however, he does not remember the date on which these measurements were
44
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
taken. He would fairly admits that he does not have any personal knowledge on the
posters affixed on the flyovers and through his agents, he has come to know about
this. Once again, there was no complaint lodged against the Election Commission.
(vi) P.W5-Prakash Sivaraj, the Constituency in-charge of the election petitioner
would state that he had seen the wall paintings of the AIADMK party in the villages
which has been supervised by him. He would submit that on 01.04.2021, while he
was doing the rounds, he saw one Kanniyappan, Ward Secretary of the AIADMK
painting a wall near the lake. When questioned as to whether he had obtained
permission for the same, the said Kanniappan responded that he was doing only as
per the instructions of the 1st respondent. He would submit that he had informed
the same to the petitioner. The petitioner had asked him to leave the place after
photographing the wall painting. He would submit that the photographs were taken
on his mobile phone and when asked whether he could produce his One Plus 7
phone, in which he had taken photographs, he would state that it is not with him. He
would also admit that none of the photographs have the date and time mentioned.
The witness would further submit that he had seen the wall paintings being done
in Periyamuthur Panchayat and the same was completed by 11.00 a.m. However,
he did not take the photographs while the painting was being done but had taken
a photo after it was completed. He would further sate that this fact was informed
to the petitioner at 12.00 on the very same day, i.e. On 01.04.2021. He would also
admit that no complaint had been given to the election Commission about these
wall paintings. The witness would state that the timings and dates are in phone.
To a question put by the Court, he would answer that he had not written down
the date and time just as he had written down the name of the places. He would
depose that the measurements were taken in fact, and the same was handed over
their candidate Senguttuvan, the petitioner herein. To a question as to whether he
would produce the notes of measurement, he would respond that he could not as
he had handed over the same to the petitioner. However, this notes of measurement
has not been produced before this Court.
(d) Documentary evidence:
Ex.P7 (marked subject to objections regarding its proof and relevancy) is a
photocopy of the petitioner’s representation dated 04.04.2021 addressed to the Chief
Election Officer, the District Election Officer, District Collector, the Election Officer
and the Election Observer regarding the wall posters with the party symbol being
put up on Government buildings and flyovers by the AIADMK, calling upon them
to take action against the 1st respondent. There is nothing to show that this letter
has been served on the official concerned and the mode in which the letter has been
despatched is also not clear from a perusal of the document. In the photographs
which have been marked in Ex.P16 series, the names of the places have been
inserted in the photographs. However, there is no time or date.
(e) Conclusion :
It is the petitioner’s case that the wall painting and wall posters were violative
of the Election Rules as it far exceeded the minimum amount fixed by the Election
Commission. To prove that the petitioner has exceeded this amount, he has come
45
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
forward with a tabulated statement showing the wall painting done in each panchayat
and contending that over 22330 sq.ft. had been painted. The petitioner case is that
an amount of Rs.20,00,600/- has been spent on these wall paintings. This is arrived
at on the basis of the estimate given by the painter, Surya. However, the petitioner
has not chosen to examine the said Surya. Further, the photographs marked as
Ex.P16 series do not in any manner prove the case of the petitioner that this extent
of 22330 sq.ft has been painted and that these paintings are in respect of the
places as printed in the photographs. The photographs would only show that the
wall paintings have been done. In fact, P.W6, to a question put by the Court, has
fairly conceded that they had also painted their party symbols on private houses.
As regards the wall posters fixed on the fly overs, there was no documentary proof
except for the oral evidence. Though in the petition and evidence, the petitioner
had contended that the wall posters were put up on the government buildings and
fly overs, however during evidence, they would contend that it was put up on the
flyovers. Interestingly, though P.W5 and P.W6 would submit that no compliant was
lodged by them, Ext.P7, letter dated 04.04.2021 had been produced to state that
a complaint was lodged. Further, P.W1 would submit that he had seen the wall
painting on 01.04.2021. Similarly, P.W6 would state that he had seen the wall
paintings on 04.04.2021 and 06.04.2021. The polling date was on 06.04.2021. Ext.
C10 is a shadow observation record which is the statement of expenses incurred
each day by the first respondent. This record has been countersigned by the election
officer and the presumption is that it has been cross-checked by the officials.
28.2 Section 77 of the R.P.Act deals with election expenses and the maximum
thereof. Section 77(1) with its explanations and provisions reads as follows :
“ 77. Account of election expenses and maximum thereof :-
1.
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.
Explanation 1.—For the removal of doubts, it is hereby declared that—
(a) the expenditure incurred by 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;
(b) any expenditure incurred in respect of any arrangements made, facilities
provided or any other act or thing done by any person in the service of the Government
and belonging to any of the classes mentioned in clause (7) of section 123 in the
discharge or purported discharge of his official duty as mentioned in the proviso to
that clause shall not be deemed to be expenditure in connection with the election
incurred or authorised by a candidate or by his election agent for the purposes of
this sub-section.
46
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Explanation 2.—For the purpose of clause (a) of Explanation 1, the expression
“leaders of a political party”, in respect of any election, means,—
i) where such political party is a recognised political party, such persons not
exceeding forty in number, and
ii) where such political party is other than a recognised political party, such
persons not exceeding twenty in number, whose names have been communicated
to the Election Commission and the Chief Electoral Officers of the States by the
political party to be leaders for the purposes of such election, within a period of seven
days from the date of the notification for such election published in the Gazette of
India or Official Gazette of the State, as the case may be, under this Act:
Provided that a political party may, in the case where any of the persons referred
to in clause (i) or, as the case may be, in clause (iii) dies or ceases to be a member
of such political party, by further communication to the Election Commission and the
Chief Electoral Officers of the States, substitute new name, during the period
ending immediately before forty-eight hours ending with the hour fixed for the
conclusion of the last poll for such election, for the name of such person died or
ceased to be a member, for the purposes of designating the new leader in his place.
Section 77(3) provides that the total expenditure should not exceed the amount
prescribed.
28.3 In the judgment reported in 1996 (2) SCC 752 [Common Cause (A
Regd. Society) Vs. Union of India & Others], the Hon’ble Supreme Court was
considering a public interest litigation which sought to bring about transparency in
election funding. The Bench was considering Section 77 of the R.P.Act alongside
Sec.293A of the Companies Act and Section 13A of the Income Tax Act. The Bench
prima facie observed that in terms of Explanation (1) to Section 77 of the R.P.Act,
the expenditure incurred by a political party is presumed to be that of the candidate
himself but the said presumption was rebuttable. Once rebutted, the expenditure
shall be deemed to have been incurred by the political party.
28.4 This, therefore pre-supposes that the petitioner who seeks to set aside
the election of the returned candidate has to show that the expenses have be
incurred and thereafter, it is for the returned candidate to rebut the presumption.
In the petition, the petitioner has given a tabulated statement of the alleged area in
which the wall painting has been put up and tried to substantiate the same through
Ext.P.16 photo series and the oral evidence of P.W.5 and P.W.6. The petitioner has
not chosen to examine Surya, the painter who is supposed to have given them the
per sq.ft. Rate and they have also not produced the working sheet for having taken
the measurements. Therefore, the initial onus of proving that the first respondent had
put wall paintings to an extent of 22,330 sq.ft., has not been proved by the petitioner.
28.5 Further, the petitioner has not been able to establish that this excess
expenditure incurred has materially affected the result of the election. In the judgment
of the Hon’ble Supreme Court reported in 1999 (1) SCC 666 [L.R.Shivaramagowda
& Others Vs T.M.Chandrashekar (dead) by LRs & others], the three Judges Bench
47
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
had observed that in order to declare a election to be void under Section 100(1)(d)
(iv), it is absolutely necessary for the election petitioner to plead that the result of the
election insofar as it concerned the returned candidate has been materially affected
by reasons of non-compliance with the provisions of the Act and Rules.Therefore,
since the petitioner has not been able to prove the allegation with reference to over
expenditure and the paintings on the public buildings and fly overs, Issue Nos. 5
and 6 are answered against the petitioner.
ISSUE No.7:
29. The issue No.7 relates to the rejection of postal ballots and the counting
recorded in two EVMs :
Whether the Returning Officer of the No.53, Krishnagiri Constituency committed
irregularities and illegalities by improperly rejecting the postal ballot votes and in
counting the votes recorded in the EVMs, thereby materially affecting the election
of the 1st respondent rendering the election liable to be set aside under Section
100(1)(d)(iii) of the Representation of the Peoples Act, 1951 ?
(a) Petitioner’s case:
(i)
Improper rejection of postal ballots and the counting of votes recorded
in EVMs:
It is the case of the petitioner that the 18th respondent had commenced
counting of the votes at 08.00 am in the presence of the petitioner’s Chief Election
Agent and other agents (the date of the counting has not been stated). It is the
contention of the petitioner that his agents noticed that several postal covers were
being discarded by the officials without assigning reasons for the covers
having been rejected. The covers were summarily discarded without even informing
the petitioner’s Chief Agent, Tamilselvan. Thereafter, the Chief Agent requested the
18th respondent to show the results of the postal ballots to all the candidates and
their agents and reject the same only if there were reasonable grounds for rejection.
The 18th respondent refused to show the result and rejected 605 covers without
assigning any reasons. The petitioner would submit that the counting of the postal
ballots was completed by 1.00.pm. Thereafter, the counting of EVMs started and
after the counting of EVMs at around 9.30pm, the Returning Officer had handed
over the total tally of votes received through postal ballots. To the shock of the
petitioner, 605 votes were rejected out of 3,318 votes polled. On 02.05.2021, the
petitioner had made a representation stating that the rejection of 605 votes was
illegal and without assigning the reasons. The petitioner would further submit that
initially, the Returning Officer had kept these postal ballots separately promising to
open them at a later point in time. However, without informing the petitioner or
his agents, the postal ballots were taken up for counting and the 605 covers had
been rejected. The reasons for rejection were given in the reply dated 02.05.2015
in a tabulated statement extracted herein below:
48
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Sl.
No.
Reasons for
Rejection of PB
Table 1
Table 2
Table 3
Table 4
Service
Votes
Grand
Total
1.
13A
Declaration
Found Defect
22
7
-
1
141
30
2.
13A not found in
13C
13
34
14
14
2
75
3.
Multiple Votes
Recorded
2
6
3
1
-
11
4.
PB
serial
number
not
matched
83
64
33
44
-
224
5.
No marking /
Mark on blank
area
2
2
-
1
2
5
6.
PB found outside
of 13B
1
1
-
1
14
3
7.
Spurious PB/
Damaged PB
-
-
-
-
-
-
8.
Elector Identifiable
2
2
-
2
-
6
9.
Received lately
-
-
-
-
-
-
10.
13B not found
PB No
11
-
-
-
-
11
11.
Others
-
-
55
-
25
55
Total
136
116
105
64
184
605
The petitioner would contend that the Rules does not contemplate rejection
under the head “others”.
(ii) The Deficiencies and irregularities in counting the EVM votes:
(a) It is the contention of the petitioner that with reference to EVM in Polling
Station No.79 bearing Control Unit No.BCUAF08025, serious irregularities were
committed by the Returning Officer. It is the case of the petitioner that on 06.04.2021,
a mock poll was conducted in all the polling booth at 6.00.am. The petitioner’s
agents participated in the mock poll to check if the EVM control unit and VVPAT
were functioning properly and were in order. After the mock poll, the Booth Level
Officer (BLO) did not reset the EVM before commencing the actual poll and therefore,
50 votes cast in the said EVM were invalid votes. This fact was informed by the
Returning Officer on the date of the counting i.e., on 02.05.2021. The Returning
Officer informed that this EVM will be kept aside and would be counted later
through its VVPAT.However, the EVM with the VVPAT was taken up for counting
without the presence of the petitioner and his agents.
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
(b) Yet another irregularity was at Polling Station No.95, bearing Control Unit
No.BCUEF88410. This Unit was taken up for counting in Round 9 at Table 1, where
EVM malfunctioned. The Officer in- charge was directed by the Returning Officer,
to keep the control unit separately and count the same at the end. However, once
again, the counting was undertaken without the presence of the petitioner and his
agents. The petitioner had therefore submitted a representation on 02.05.2021 to the
18th respondent stating that the entire counting process was doubtful and requested
for recounting of all EVMs and postal votes. The said request was refused by the
18th respondent under Rule 63(3) of C.E.Rules, 1961. The counting of votes through
VVPAT in the absence of the petitioner and his agents and without following the
procedures contemplated under Rule 56 of C.E.Rules, 1961 by the 18th respondent
has materially affected the election of the petitioner.
(b) Response to the above:
The 1st respondent except for making an over all denial of the allegations,
has not raised specific defence to counter the narrative.
(c) Oral evidence:
(i) In order to substantiate their allegations, the petitioner has examined P.W7,
Raj Kumar, the Booth Agent of the petitioner for Polling Booth No.79. The said
witness in his chief examination would submit that all the booth agents had polled
around 10 mock votes each and he had polled 5 mock votes. He would further
submit that after the mock votes were polled, he had requested the Retuning Officer
to erase the votes. The Officials informed him that it would be done, but however
without erasing the same, the poll had started. He would submit that at 6.00
pm, he came to realize that since the officials had a tally of 607 votes. However, his
entries showed only 557 votes. None of the above statements find place either in
the Election Petition or in the Chief examination of the petitioner. He would further
submit that these booth agents were present during the mock poll. In his cross
examination, he would retract and state that the officials had asked each agent to
cast 5 or 10 votes. He had not seen how many votes the other booth agents had
cast. To a question as to the basis on which he had come to the conclusion that
607 votes were cast, the witness would state that it was on the basis of the booth
list. However, to a question as to whether he could produce the booth list with
markings, he would answer that he had handed it over to the election petitioner.
(ii) The petitioner had issued subpoena to the Revenue District Officer
(C.W.1). C.W1 had marked 14 documents as Ex.C1 to C14 which were sought
for and allowed in A.No.925 of 2023 and the same were marked. The same is
extracted herein below:
Ex.C1 is the Roundwise Tabulation Sheet and the Final Tabulation Sheet.
Ex.C2 are the records pertaining to counting of postal ballots, round wise tally
of postal ballot votes and final tally of postal ballot votes.
50
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Ex.C3 is the order dated 02.05.2021 passed by the Returning Officer in respect
of the rejection of postal ballots.
The 605 rejected postal ballots with their respective accompanying documents
has been produced and they are contained in the box. The box received is
marked as Ex.C4 together with the key and it is locked and the box is handed
over to safe custody.
The box containing 750 postal ballots polled in favour of the 1st respondent
along with accompanying documents is marked as Ex.C.5.
Ex.C6. is the objection dated 02.05.2021 filed by the Election Petitioner on
rejection of postal ballots.
Ex.C7. Series 2 numbers are the CCTV footage for booth numbers 79
and 95. (The documents are marked subject to the production of certificate
under Sec.65 B of the Evidence Act)
Ex.C8. is the CCTV footage of the counting center. (The documents are
marked subject to the production of certificate under Sec.65 B of the Evidence Act)
Ex.C9. is the expenditure statement filed by the 1st respondent.
Ex.C10. is the shadow observation record of the expenses of the 1st respondent
maintained in the SOR (Shadow Observation Register).
Ex.C11 is the Form 26 and Nomination Form of the 1st respondent.
Ex.C12 series (2 nos) is the representation given by the Election Petitioner
and the order dated 02.05.2021 passed by the Returning Officer.
Ex.C13. is the Control Unit bearing No. BCUAF08025 for Polling Booth No.79
AV Gangaleri, for the date of poll 06.04.2021. The control unit was sealed and opened
in the presence of both the counsels. The serial number of the Control Unit was
displayed and verified by the Court. In order to see the total number of votes, the
CRC (close result clear) compartment was broken along with the blue and green
seal and on pressing the close button in the presence of both the counsels it was
seen that the Control Unit was closed without closing the votes polled. Only if the
votes are closed, the result will be displayed. On pressing the close button, the total
number of votes polled was displayed as 657.
Ex.C14. The Control Unit bearing No. BCUEF88410 for booth no.95 Balaguri
Polling station for the date of polling 06.04.2021. The total number of candidates
is displayed as 13. The serial no. of the Control Unit displayed was verified by the
Court. It displayed “Data Digit Error”. The machine was switched off and switched
on and the seal was broken in the presence of both the counsels. The total number
of votes displayed is 716.
(iii) C.W.2 is the Returning Officer of the Krishnagiri Assembly Constituency. In
her cross examination, she would submit that she had not received any objections
with reference to the nomination filed by the 1st respondent, the distribution of money
51
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
to voters, misuse of official machinery and excess expenditure. She would further
submit that Ex.P7-letter dated 04.04.2021 does not contain an acknowledgement
of she having received it and she would add that normally, when an objection is
received, it is acknowledged. With reference to the counting of the postal ballots, in
her cross examination, she would submit that she was present at the table when the
counting of postal ballots had commenced. She would further submit that each ballot
papers were scrutinized separately in the presence of the agents of the candidates
and that the reasons for rejection have been given to all agents. She would also
submit that an ARO of Gazetted rank has explained the reasons of rejection and
after the end of each round, the signatures from the agents were obtained. She
categorically denied the statement that it was only after receiving the complaint
from the DMK party candidate, the reasons for rejection were affixed on the postal
ballot. After each round, signatures were obtained from the agents present for the
postal ballots that were accepted and rejected. The ballot papers were displayed to
all the agents. She would explain that the reason for classifying the certain postal
ballots under the head “others” was that it was provided in the format and further
the reasons for rejection in some cases did not fall within the reasons set out in
this format. The witness would further clarify that the mock votes were not erased.
However, the counting has been done on the basis of VVPAT slips with the consent
of the Election Observer and thereafter, the excess votes were reduced. She would
submit that the rejection was done as per the instructions given in the Handbook of
Returning Officer and with the consent of the Election Observer. Even with reference
to the Polling Station No.95, the counting was done through VVPAT slips. She would
submit that the Election Observer was kept informed and he had given his consent
and affixed his signature in the round wise tabulated sheet for both polling station
Nos.79 and 95. She has deposed that as per Rule 15.18.3 of the Handbook of the
Returning Officer issued by the Election Commission of India, in case where votes
have been cast in the EVM without erasing the mock poll votes, the VVPAT slips
are required to be counted at the end. While counting for Polling Station Nos.79
and 95 was undertaken, as also the execution of Ex.C17-series, neither the election
petitioner nor his agents were present. They have also not signed the documents.
The entire procedure has been videographed.
(d) Conclusion :
Before adverting to the pleadings, response and evidence, it would be useful
to extract the following provisions of the Hand Book for the Returning Officer :
Rule 15.14 of the Hand Book for Returning Officer deals with counting of
postal ballot papers. Rule 15.14.1 reads as follows:
“15.14.1 Under Rule 54A of the Conduct of Elections Rules 1961, the counting
of postal ballot papers shall be started first at the RO’s table. Only such Postal Ballot
Papers shall be taken up for counting which are received by the RO before the hour
fixed for commencement of counting. The Returning Officer shall furnish the latest
account of the total number of postal ballot papers (received from the facilitation
centers and through post) to the Observer at the time of commencement of counting.”
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
15.14.12 sets our further reasons for rejection which are as follows:
15. Postal ballot paper will be rejected on the following grounds: -
(a) If no vote is recorded thereon; or
(b) If votes are given on it in favour of more than one candidate, or
(c) If it is a spurious ballot paper, or
(d) If it has been so damaged or mutilated that its identity as genuine ballot
paper cannot be established; or
(e) If it is not returned in the cover “B” sent along with it to the elector by
the Returning Officer, or
(f) If the mark indicating the vote is made in such a way that it is doubtful
to make out the candidate to whom the vote has been given; or
(g) If it bears any mark or writing by which the voter can be identified.
(i) The grievance of the petitioner is that the rejection of the postal
ballots has been done without following the Rules and thereafter, the counting of
the same has been done in the absence of the petitioner’s agent, chief election
agent. Further, the rejection has been made on one ground which is not found in
the Rules namely under the “others”. As already stated, in the light of the judgments
of the Hon’ble Supreme Court mentioned supra, and also taking into account the
fact that the margin of victory appears to be very slender and the total number of
postal votes was 605, this Court had independently scrutinised the evidence that
has been exploited before this Court with the help of the officials.
(ii) A scrutiny of the postal ballots which have been rejected under the
head “others” indicates that those ballots were defective. For example, in some
cases, the serial numbers on the postal ballots did not match, and in others, the
declaration in Form 13A was defective. Therefore, in such circumstances, the same
was included under the head
‘others’
as
they
would
not
come under
the single category provided in the format, but the defect fell under two or more
categories. Therefore, if the rejected votes were taken into consideration on the
basis of reasons, it would lead to an anomalous situation where one vote could
be treated as two or three. Therefore, categorizing them under the head ‘others’ is
a definite way of arriving at the correct tally of votes. That apart, it is as per the
ECI’s format. Further, even under this head, the reasons for rejection fall within
the grounds set out in Rule 54A of the Conduct of Election Rules, 1961, and the
total number of rejected votes tallies to 605. Accordingly, the rejection of the postal
ballots appears to be in order.
(iii) On a perusal of the video, it is seen that an Official is showing a
demo ballot paper at table No.2 and the same has been explained to the Agents.
The video would also show that the questions being asked by the Agents. In
Table No.3, it appears that some of the votes are being re-checked. Table No.4
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
would show that each ballot paper is being shown to the agents before it is put
in the respective boxes. Therefore, the rejection cannot be called into a question,
particularly, when the Returning Officer has followed the procedure contemplated in
the Hand Book.
(iv) In the EVM of Polling Station No.79, the mock polls have not been
rejected. The Officials of the BHEL who had come along with the election officials
for scrutinizing the postal ballots have explained to the Court that the symbols are
recorded only in the VVPAT and mock polls did not get registered into the VVPAT.
Therefore, the 50 mock votes can be easily ignored since the VVPAT had only
registered the actual votes. Therefore, the final result has not been affected.
(v) Likewise, with reference to the Polling Station No.95 where there was
a malfunction as there was no display, the petitioner would explain that the result
of the same had not been closed after the polling. Further, it would not affect the
results since the results are recorded in the VVPAT and the total votes polled remains
unchanged. The petitioner has not stated as to how the malfunction has affected
the results.
(vi) A regards votes cast in booth Nos.79 and 95 have been cross
examined with VVPAT and is found to be in order. The expansion of abbreviation
VVPAT is ‘Voter Verifiable Paper Audit Trail ‘. VVPAT is an electronic device that
includes a direct recording electronic voting system. DRE in short would assure
voters that their votes have been recorded as intended and as a means to detect
fraud and equipment malfunction. VVPAT is a means by which a manual vote count
can be conducted, if a re-count is necessary. Rule 56(D)(4)(b) of the C.E.Rules
provided that where there is a discrepancy between the votes displayed in on
the control unit and counting of the paper slips (VVPAT), result sheet in Form 20
has to be amended as per the paper slips count.
(vii) Further after the mock poll, apart from resetting the EVMs, the VVPAT
slips for mock are destroyed. This assumes significance since the petitioner has only
alleged that the EVMs had not been reset, but does not whisper anything about the
VVPAT.
(viii) After scrutinizing the postal ballots and the videograph, it is seen that
the allegations made by the petitioner that the postal ballots had been rejected
indiscriminately, that the agents were not kept informed, and that the counting had
taken place in the absence of the agents, are all found incorrect. Therefore, the
grounds raised by the petitioner in this regard cannot be countenanced and this
Issue No.7 is answered against the petitioner.Further, the judgements relied upon
by the petitioner in this regard does not come to his aid.
ISSUE No.8 :
30. The Issue No.8 framed for consideration is :
“Whether the present election petition is barred by limitation and latches?”
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TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
Conclusion :
(i)
The pleadings on either side would clearly show that the nominations were
called on 12.03.2021, the last date for filing the nominations was 19.03.2021, date
for scrutiny of nomination was 20.03.2021, the last date for withdrawal of candidature
was 22.03.2021 and the date of poll was 06.04.2021. The election results had been
declared on 02.05.2021 and the election petition has been filed on 30.06.2021, no
doubt beyond the prescribed period of 45 days. However, in the light of the order
passed by the Hon’ble Supreme Court in a miscellaneous petition No. 665 of 2021
in SMW(C) No.3 of 2020 dated 27.04.2021, the period of limitation can be extended.
It has been held as follows:
“We, therefore, restore the order dated 23rd March, 2020 and in continuation of
the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed
under any general or special laws in respect of all judicial or quasi-judicial proceedings,
whether condonable or not, shall stand extended till further orders”.
(ii)
Reliance may be placed in this regard to Section 81 of the R.P.Act, which
reads as follows :
“81. Presentation of petitions:—
(1)
An election petition calling in question any election may be presented on
one or more of the grounds specified in sub-section (1) of section 100
and section 101 to the High Court by any candidate at such election or
any elector within forty-five days from, but not earlier than the date of
election of the returned candidate or if there are more than one returned
candidate at the election and dates of their election are different, the
later of those two dates.
Explanation.—In this sub-section, “elector” means a person who was entitled
to vote at the election to which the election petition relates, whether
he has voted at such election or not.
(2)
***
(3)
Every election petition shall be accompanied by as many copies thereof
as there are respondents mentioned in the petition and every such copy
shall be attested by the petitioner under his own signature to be a true
copy of the petition.
(iii) The 1st respondent would submit the election petition ought to have presented
within a period of forty-five days from, but not earlier than the date of election of
the returned candidate or if there are more than one returned candidate and dates
of their election are different, the later of those two dates. The 1st respondent would
further state, the State assembly election was conducted on 06.04.2021 and the
results were announced on 03.05.2021. Though the first respondent would contend
that the petition was filed on 30.06.2021, i.e., nearly 63 days after the announcement
of the election results, however, in the result of the above referred judgement of
the Hon’ble Supreme Court, the time stood automatically extended. Therefore, the
petition is filed well within the time. This Issue No.8 is answered in favour of
the petitioner.
55
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
ISSUE No.9 :
31. The Issue No.9 is :
Whether the present election petition is compliant of Section 81 of the
Representation of People’s Act 1951 ?
Conclusion :
In the light of the answer given to issue No.8, it cannot be stated that the
election petition is not compliant with Section 81 of the R.P. Act since by reason of
the orders of the Hon’ble Supreme Court, the limitation period has been extended
and the election petition has been filed within the prescribed time. Therefore, Issue
No.9 is answered in favour of the petitioner.
ISSUE No.10:
32. As regards the 10th issue, namely, Whether the present petition
contains sufficient cause of action for this Hon’ble Court to take cognizance
and try the same, the petitioner has challenged the election of the 1st respondent
on various grounds and has given reasons as to why the election being questioned.
Therefore, this Court is of the opinion that the election petition contains sufficient
cause of action for the Court to take cognizance of the petition and to try the same.
This Issue No.10 is answered in favour of the petitioner. However, Issue Nos.
11, 12 and 13 are answered against the petitioner.
SUMMATION :
33. In the light of the above discussions, Issue Nos.1 to 7, 11, 12 & 13 are
answered against the petitioner and Issue Nos.8, 9 & 10 are answered in favour of
the petitioner. Accordingly, the Election Petition is dismissed. No costs.
WITNESS, THE HON’BLE MR.JUSTICE SHRIRAM KALPATHI RAJENDRAN,
CHIEF JUSTICE, HIGH COURT AT MADRAS, AFORESAID THIS THE 28TH DAY
OF MAY 2025
Sd./-
Assistant Registrar
Original Side –II
//Certified to be true copy//
Dated at Madras this the 11th day of June 2025.
COURT OFFICER(O.S)
‘Madras High Court is issuing certified copies in this format from 17/07/2023’.
(BY ORDER)
56
TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY
MK
05/06/2025
ELP.No.9 OF 2021
THE HON’BLE Ms.JUSTICE
P.T. ASHA
ORDER DATED: 28/05/2025
FOR APPROVAL: 10/06/2025
APPROVED ON :10/06/2025
Copy to:
1. The Returning Officer
53, Krishnagiri Assembly Constituency,
Krishnagiri Taluk,
Krishnagiri District,
Tamil Nadu 635 122.
2. Election Commission of India
Nirvachan Sadan, No.1,
Ashoka Road, New Delhi-110 001
(By Order)
Lata Tripathi
Secretary,
Election Commission of India.
Secretariat,
ARCHANA PATNAIK,
Chennai-600 009,
Chief Electoral Officer and
12th August, 2025.
Secretary to Government.
PRINTED AND PUBLISHED BY THE COMMISSIONER OF STATIONERY AND PRINTING,
CHENNAI ON BEHALF OF THE GOVERNMENT OF TAMIL NADU