IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26-07-2011 CORAM THE HON'BLE MR.JUSTICE V.DHANAPALAN APPLICATION No.1441 OF 2010 IN ELECTION PETITION No.6 OF 2009 ORDER This application is filed under Order 6 Rule 16 C.P.C. read with Section 86 of the Representation of the People Act,1951, praying to reject and strike off the Election Petition filed by K.Kalaimani, the election petitioner in the Election Petition. 2. Election Petition No.6 of 2009 has been filed to declare that the rejection of the election petitioner's nomination filed for 197, Ilayangudi Assembly Constituency-Tamil Nadu, by the Returning Officer is improper, illegal, void and contrary to the provisions of the Representation of the People Act,1951, in short, "the Act", and the Returning Officer's instructions 2009 issued by the Election Commission of India and consequently to set aside the entire election process including the election of the first respondent as returned candidate from 197, Ilayangudi Assembly Constituency. 3. Facts : 3.1. According to the applicant, poll schedule for the bye-election with respect to 197, Ilayangudi Assembly Constituency was notified on 16.07.2009. The first respondent/election petitioner in paragraph No.1 could state that the following schedule was fixed for the poll :- a) Date of commencement for filing nomination-22.7.2009 b) Last date for filing nomination  28.7.2009 c) Scrutiny of nomination - 30.7.2009 d) Last date for withdrawal of nomination- 1.8.2009 e) Date of election - 18.8.2009 f) Date of counting of votes and declaration of result-21.8.2009 3.2. Thus, between the commencement of filing of nomination and the last date for filing nomination there was at least seven clear days to prepare and file the nomination. The petitioner claims that he has filed his nomination on 27.7.2009 before the Returning Officer namely the 12th respondent herein and in the Election Petition. In fact, the election petitioner had enclosed document No.2 in the list of documents along with the election petition. The same is the poll schedule issued by the Election Commission of India. Thus, it may be seen that the election petitioner is fully aware about the schedule to bye-poll to be conducted and more about the date of commencement and the date of closure of the nomination also. The election petitioner is in the habit of contesting in elections irrespective of results. He had earlier contested in Parliament election held in May 2009 to elect 15th Lok Sabha and had secured just one thousand votes or about out of twelve lakh votes. The petitioner is also well versed in shfting himself to various political parties and he was earlier in Rashtriya Swayam Sevak Sangh, which is part of Bharathiya Janatha Party. When the earlier Ilayangudi M.L.A. joined DMK Party, this election petitioner also joined DMK Party. When he hd left the party, this election petitioner also left the party. Thereafter, as an independent candidate, he had contested in the said Parliametary election. After gaining all such experience he had filed this highly defective nomination in the Bye-poll. Thus, the petitioner has got good knowledge in election matters and has got rich experience. He has got required experience in contesting elections. 3.3. With the above background, the election petitioner has filed his nomination on 27.7.2009. Thus, on the 6th day after the start of filing of nominations he had every time in the world to prepare and present proper nomination that is capable of being acceptable. The petitioner's party though claim to be a registered party is not a recognised political party within the meaning of the Rules of the Election Commission of India. Hence, the question of allotment of reserved symbol or issuance of 'A' form or "B' form does not arise. 3.4. The election petitioner, in para-5, had indicated the names of ten voters in the said Constituency, whom the petitioner claims that they have proposed him as a candidate. The petitioner has not filed any affidavit from those proposers nor indicated any genuineness about they having proposed the nomination of the election petitioner. According to the election petitioner, his nomination stood rejected on defective presentation. By his own admission in the election petition, he could state that the serial numbers of three proposers mentioned in the nomination paper did not tally with the voters list with respect to their names and corresponding numbers. This itself, as admitted by the petitioner, indicates that he had filed defective nomination. The petitioner falsely claims in para-9 that he had his bad health condition on the date of the scrutiny namely on 30.7.2009. The election petitioner even goes to the extent of stating falsehood that he was contacted by the Returning Officer and asked him to come over to the office "to set right the small issue appeared to have figured relating to serial numbers of three proposers mentioned in the nomination papers". He is forgetting the fact that under the law any candidate who is filing his nomination is entitled to nominate his agent who could represent him during scrutiny. The petitioner has not stated in his election petition whether he has appointed any such agent for him at the time of filing nomination. 3.5. Though the petitioner claims that he was taking treatment around 11.00 a.m. At the Salaigramam Hospital, Ilayangudi, he has not enclosed any document in the list of documents filed along with the petition numbering twenty which could indicate about his ill-health and his treatment at the hospital. This speaks volumes against him and his election petition. From the reading of the petition, it is stated by the election petitioner that on the date of scrutiny he had sent a person to represent him at scrutiny. According to him in para-7, he could state that he had issued necessary letter to Arulmozhi, whereas either a copy of the same or details about the same or at least an affidavit from him is not filed along with election petition. If any improvement is made on this after this application, it will be only an afterthought, whereas the fact remains the said Arulmozhi attended the scrutiny of nominations on his behalf and did not say anything on that day about the incorrect version or defect in serial numbers of the voters corresponding to voters list with respect to the alleged proposers. In fact, no written protest or complaint or explanation was offered before the Returning Officer nor a copy of any such thing is enclosed along with the election petition. 3.6. In election disputes before the Court of law, the question of oral discussion, oral intimation or the false claims on the Returning Officer's alleged conversation etc. does not have any valid proof. The responsibility attached to a person filing election petition has not been done with any seriousness by the petitioner in a proper manner and the deliberate and unbelievable false averments are made which are perse unbelievable, false and incorrect even to the knowledge of the petitioner himself. 3.7. The averments made in para-10 are again an incorrect version as if the Returning Officer went away after scrutiny and the Returning Officer refused to accept the explanation of the election petitioner's letter. In para-10, the petitioner could further state that he has preferred a representation to the Returning Officer about the rejection of his nomination. The same is sought to be filed as document No.9, which is extracted hereunder:- "the small issue appeared to have figured relating to serial numbers of three proposers mentioned in the nomination papers." 3.8. The reading of the above letter does not indicate that he was admitted in the hospital. The reading of the letter further indicates that he never went to the hospital at all and the letter only indicates that he was not well and due to that he could not attend the scrutiny. The reading of the letter does not indicate that he has sent any person by name Arulmozhi as falsely claimed in para-7 and 8. The reading of the entire election petition including para-7 and 8 no where states that he has authorised any one much less the said Arulmozhi to attend the scrutiny. Thus, he is twisting, suppressing and falsely stating many versions on the role of the said Arulmozhi. 3.9. The reading of the letter of the election petitioner dated 30.7.2009 (Document No.9) does not indicate that he had given any clarification or the correct serial umber with respect to any proposer. His letter does not indicate that his "Party" "Leader" spoken to the Returning Officer to accept the nomination. No such conversation is allowed in law. Thus, it may be seen that the version revealed in the first and foremost letter on 30.7.2009 is totally different from what is now sought to be improved in the election petition. 3.10. The letter of the election petitioner dated 30.7.2009 does not clearly clarify on the details about the proposers and their serial numbers. The names thereof or the correct numbers. He has not quoted any rule in support of his contention. The claim made in par-10 is to the extent that "The petitioner pointed out and identify the correct serial numbers of the proposers to the Returning Officer and requested him to accept the nomination". No proof was filed by the petitioner to the effect that his party leader Mr.Sakthivel spoke to the Returning Officer and clarified the doubts. It is not possible for the said leader since he is well away at Chennai nor such matters are allowed in election process. It is not correct to state that the rejection of nomination papers of the election petitioner was not supported by any order. In fact, the reading of para-8 and 9 cuts across the claim of the election petitioner made in para 11. There is no record available from the side of the election petitioner that the rejection order was not passed or made. There is no provision under law which could compel the Returning Officer to go on conversing with party leaders or the persons who have filed nomination. Document Nos.8 to 11 are inadmissible documents as no credibility need be given on such representations made by third parties unconnected with the election process. 3.11. Except the letter dated 30.7.2009, nothing emanates from the petitioner thereafter. Thus, it may be seen that except the letter under Sl.No.18, dated 11.9.2009, which is only a request for seeking an order, the rest of the correspondence maintained by some third parties claimed to be the leader of an unrecognized political party is alien to the election process and election petition. No such correspondence could be maintained in election matters and it is not as if such correspondence is answerable or to be replied by the Returning Officer under any rule of law. 3.12. The election petition lacks reasoning and lacks genuine and triable issue to be gone into. There are no material facts or material particulars to point that the petitioner's nomination paper was improperly rejected. The candidate who is not in a position to file his nomination in a proper manner as required under election laws has no locus standi to question about the election result by means of an Election Petition. 3.13. The massive verdict of the voters in favour of the returned candidate namely the applicant in the application cannot be so lightly dealt with in the election petition that too at the behest of a person who had filed highly defective nomination and equally the Election Petition. The petitioner has lo legal right to file and maintain the above election petition. The election petitioner is improving a non-issue with the addition of documents and representations by third parties subsequent to the rejection of his defective nomination. They are nothing to do with the issue on hand. 3.14. Coming to the orders made in writ petition and the orders made in Writ Appeals made by the First Bench of this Hon'ble Court it is sufficient to indicate that the petitioner has nothing to gain from the order of the learned single Judge since the said order has been fully reversed by the Division Bench well in time. The election petitioner has not taken the issue to the Supreme Court. Hence, the First Bench order stood confirmed and has become final. The election petition does not indicate any triable issue. There is no improper rejection of his nomination. There is no question of discretion or show of any sympathy available in election matters nor the election petitioner can insist on such misplaced sympathies from the Returning Officer. The strict adherence to rules and procedure is the hallmark of election process and conduct of elections. The petitioner has not made out any cause or case. The petitioner has not made out any material facts or material particulars to have any triable issue in the election petition. The strict and correct adherence of Rule of law made by the Returning Officer cannot be an issue in the Election Petition. The election petition lacks material facts and material particulars to proceed further. 3.15. The rejection of nomination made by the Returning Officer is perfectly valid and proper since a candidate necessarily has to answer the nomination papers and fill it up in a proper manner so as to get him introduced and listed as a candidate to the voters. Election petitions are not filed or tried on the ground of false claims or false statements or conjectures or matters on sympathy or seeking any indulgence outside the scope of law. Neither the guidelines, nor any circular anywhere in this context could help the election petitioner on his defective nomination. At any rate, the election petition filed by the election petitioner in E.P.No.6 of 2009 is not liable to be kept on record any further nor the averments made in the plaint or the petition filed in E.P.No.6 of 2009 indicates any triable issue so as to allow it to continue on the file of this Hon'ble Court. 3.16. Under the above circumstances, the applicant has filed this application for the relief stated supra. 4. The first respondent, namely, election petitioner has filed a counter affidavit, stating as follows : 4.1. The application has been filed without considering the material facts and triable issues made out in the election petition. The election petition has been preferred on the question of failure of the Returning Officer in exercising the mandatory requirement of verification of the nomination paper as contemplated under Section 33 (4) of the Act and whether the Returning Officer has satisfied himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. This is a mandatory provision under Section 33 (4) of the Act and any failure to exercise on the part of the Returning Officer is a triable issue and material fact with respect to rejection of the nomination papers. 4.2. In the election petition, it is stated that the Returning Officer has not allowed time to the petitioner to rebut any objection of the Returning Officer and thereby the factual aspect of the same can be gone into only at the time of trial. It is made clear in the election petition itself that the election petitioner contacted the Returning Officer over phone at 11.10 a.m. and the Returning Officer instructed him to come over to his office to set right the small issue of discrepancy of the serial numbers relating to the then proposals of his nomination. Further, it was made clear in the election petition that the election petitioner reached the office of the Returning Officer as 12.30 p.m., but, by that time, the Returning Officer had left his office and returned only around 3.30 p.m. On 30.7.2009. Thereafter, the petitioner identified the correct serial numbers of the proposers with the Returning Officer and he also preferred a representation. The party leader of the petitioner also spoke to the Returning Officer over phone clarifying the legal position. In spite of it, the Returning Officer has only orally informed the rejection of the nomination paper, but so far, has not issued any order of rejection of nomination. All these are material facts which can be proved only at the time of trial and therefore this is a triable issue on the above said facts. 4.3. At the time of scrutiny, as per proviso to Section 36 (5) of the Act, it is mandatory on the part of the Returning Officer to grant time to rebut till the next day to the candidate in case of an objection raised by the Returning Officer. Therefore, the factual aspect of any objection being raised and allowing time to the candidate rebutting the same till next day is a triable issue. 4.4. The election petitioner has also taken ground that the Election Commission has arbitrarily exercised its power on the question of rescrutiny by selectively conducting in respect of Bargur and Srivaikundam constituencies on the representation of the rejected candidate, but, wheres, Election Commission has failed to do it in the case of rejection of his nomination in spite of his party preferring a representation. The election petitioner has made all these things in paras 17,18,19,23,24 and 25. Therefore, the material aspect of the arbitrary exercise of power by the Election Commission can be proved only at the time of trial by calling for records relating to the order of scrutiny. 4.5. The Returning Officer has ignored and failed to act as per clause 16.3 of Chapter V of the instructions of the Returning Officer's handbook, chapter 6 of the handbook of instructions. All these things are material facts and the same can be proved only at the time of trial. 4.6. The application has been filed with the ulterior motive of thwarting the regular proceedings of the election petition by filing the above application with irrelevant facts and without understanding the provisions of the Act. 4.7. Without understanding the Act and Election Symbols (Reservation and Allotment) Order and handbook of instructions to the Returning Officer, the applicant has averred that Form A and Form B are meant only for recognized political parties as claimed in para 7 of the affidavit filed in support of the application. It is made clear in the Election Petition that the Returning Officer has not so far provided the order of rejection of nomination paper and it is only orally informed of the rejection on the ground of discrepancy in the serial number of the proposers. Therefore, the factual aspect of proving of the proposers can be proved only in the trial. Para 9 of the applicant's affidavit is contrary to Section 33 (4) of the Act and handbook of instructions to the Returning Officers and this is a triable issue. Paras 10 to 15 of the application are misconceived and made without understanding the scope of the Act and handbook of instructions to Returning Officers. These are all material facts for trial. The application has been filed without understanding the binding nature of the handbook for Returning Officers issued by the Government of India. The application is misconceived on the question of filing of supporting affidavits and he has failed to understand properly that a supporting affidavit is required only in the case of corrupt practices. The election petitioner has brought the material facts in the election petition which would constitute a complete cause of action with respect to wrongful rejection of any nomination papers and if the material fact is established only, the relief sought for in the election can be given. The Election Petition has been filed under correct provision of law in respect of the relief being sought under Sections 81,100 (1) (c) of the Act read with Rule 2 of the Madras High Court Election Petitions,1957. The petitioner has provided all primary and basic facts which are necessary to prove the cause of action and has also averred that on account of non- compliance with the provisions of the Constitution, the Representation of the People Act, Election Symbols Reservation and Allotment Order, and handbook of instructions to the Returning Officers, it has materially affected the election result. The petitioner has specifically averred that the omission on the part of the Returning Officer has materially affected the election results. 4.8. Under the above circumstances, the first respondent has prayed to dismiss the application. 5. The contention raised by the learned counsel for the applicant is that there is no cause of action; no triable issue and also no single material fact in the Election Petition. He would further contend that the nomination of the first respondent/election petitioner was rightly rejected by the Returning Officer and, hence, the Election Petition has to be dismissed. In support of his arguments, the learned counsel would rely on the following decisions : (i) Brij Mohan v. Sat Pal, (1985) 2 SCC 652 : "22. Learned Counsel for the parties invited our attention to certain decisions. We think it necessary to refer to only three of them. In Hira Singh Pal v. Madan Lal1 a candidate had filed two nomination papers and both of them were rejected by the Returning Officer. In rejecting the nomination papers the Returning Officer observed as follows: Shri Madan Lal, resident of Village Parchech, P.O. Ghana-hatti, District Mahasu filed two nomination papers before me on January 20, 1967 which bear Sl. Nos. 5 and 6. According to the entry in the nomination paper Sl. No. 5 Shri Anant Ram proposer has been shown to be entered at Sl. No. 383 of Part 13 of the electoral rolls for 9-Arki Assembly Constituency. From the comparison with the final copy of electoral rolls for this constituency, at Sl. No. 383 of Part 13 the name of Shrimati Phullu wife of Shri Nirjal Singh has been entered. As such this entry in this nomination paper is wrong. As regards nomination paper bearing Sl. No. 6 the candidate has shown his name to be entered at Sl. No. 504 of Part 2 of the electoral rolls for 9-Arki Assembly Constituency. From the comparison with the aforesaid entry in the final copy of the electoral rolls at the aforesaid Sl. No. of the aforesaid part one Shrimati Darshnoo wife of Shri Ghanaya Ram has been entered. Hence this entry in the nomination paper bearing Sl. No. 6 is incorrect. At the time of scrutiny neither Shri Madan Lal nor his proposer or election agent nor anyone authorised on his behalf was present so that he could be given an opportunity for correcting these entries. This candidate while presenting his nomination papers claimed to be the substitute candidate of the Indian National Congress who have put up Shri Hari Dass as their only candidate. In view of the aforesaid circumstances it cannot be ascertained whether Shri Madan Lal is an elector in any Assembly Constituency of Himachal Pradesh or that his proposer Shri Anand Ram is an elector in the 9-Arki Assembly Constituency. Shri M.R. Gupta, Advocate the person authorised on behalf of Shri Hari Dass was informed to convey to Shri Madan Lal that he can approach me any time up to 3 p.m. today for correcting these entries. Shri Madan Lal has not turned up as yet. It is now 15 minutes past 3 p.m. In these circumstances there is no alternative but to reject both these nomination papers as the candidate does not seem to be interested in correcting these entries and filing proper and valid nomination papers. These orders are passed ex parte since Shri Madan Lal has not cared to turn up. This Court has observed in that decision: ... As mentioned earlier, the errors found in the nomination papers are purely clerical errors. The Returning Officer had the duty to scrutinise the nomination papers when they were presented for finding out whether there were any clerical mistakes in the same. Under that provision he was required to find out whether the names of the candidates as well as their proposers and seconders were correctly mentioned