IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.02.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU Application No.6569 of 2009 in Election Petition No.4 of 2009 Kumar.P .. Applicant Vs. 1.Sarubala R.Thondaiman 2.Kalyanasundaram.N. 3.Lalitha Kumaramangalam,R. 4.Asaithambi.P. 5.Ravi.P. 6.Gunasekaran,K. 7.Neelamegam.M. 8.Pathinathan.P. 9.Raghavan.R. 10.Vijaykumar.A.M.G. 11.Anantha Raja.V 12.Urumaiyah.N. 13.Saravanan.V. 14.Samuel Swamidoss Manojkumar.E. 15.Chinnadurai.A. 16.Thirumavalavan.M. 17.Nagendran.A 18.Palani.P. 19.Baby Kamitha Banu.M. 20.Manssoor Ali Khan 21.Mohammed Iqbal.A.K.S. 22.Velmani.P. 23.Jafarunnisha.A. 24.The Returning Officer, 24,Tiruchirappalli Parliamentary Constituency and District Collector, Tiruchirappalli. .. Respondents Application No.6569 of 2009 is preferred under Order XIV Rule 8 of O.S. Rules read with Order VI Rule 16 of the CPC read with Section 181 of CPC seeking to strike off the election petition as not maintainable, vague and total abuse of process of law. For Applicant : Mr.V.Raghavachari For 1st respondent : Mr.R.Gandhi, SC for Mr.S.Thiruvenkataswamy For Respondents 2 to 23 : No appearance For 24th respondent : Mr.M.Raghavan, Standing Counsel - - - - ORDER This is an application filed by the first respondent in the Election Petition (ELP No.4/2009) under Order 14 Rule 8 of O.S. Rules read with Order 6 Rule 16 of CPC. Election Petition No.4 of 2009 was presented by the first respondent in this application under Section 81 read with S.100(1)(d)(iii) and (iv) and Section 129 of the Representation of Peoples Act 1951 (for short RP Act). The petition was presented on 29.6.2009. Thereafter, the matter was assigned to this court by the Hon'ble Chief Justice. The matter pertains to the challenge made to the election of the present applicant (who is the first respondent in the election petition) as the successful candidate for the Tiruchirappalli Parlimentary Constituency (No.24). 2.Originally orders were reserved on 26.2.2010. Subsequently, it was posted on 11.2.2011 for further clarification. After getting certain points clarified, it was reserved for orders. 3.It is an admitted case of both parties that the Election Commission had issued a notification on 17.4.2009 notifying the schedule of election for constituting 15th House of People (Lok Sabha). As per the poll schedule announced, the nomination of candidates was to be made on 24.4.2009. The scrutiny of nominations was to be done on 25.4.2009 and the last date for withdrawal of nominations was on 7.5.2009. The date of polling for electing the candidates for the house of people (Lok Sabha) was fixed on 13.5.2009. Casting of votes as well as declaration of results was notified to take place on 16.5.2009. 4.It is the case of the original election petitioner (first respondent herein) that she had filed her nomination as an official candidate sponsored by the Indian National Congress Party. She stood in the election with the notified "Hand" symbol. The present applicant, the first respondent in the election petition, who stood as an official candidate of AIADMK Party with the symbol "Two leaves" also filed his nomination. The other respondents 2 to 23 have also filed their nominations and contested either as candidates of recognized political parties or as independent candidates. Before filing her nomination, the original election petitioner was holding the post of Mayor of Tiruchirappalli Corporation. After resigning from the post, she had filed her nomination. 5.The Tiruchirappalli Parliamentary Constituency comprises of six assembly segments, i.e. Srirangam Assembly (139), Tiruchirappalli West Assembly (140), Tiruchirappalli East Assembly (141), Tiruverumbur Assembly segment (142), Kandarvakottai (Reserved assembly segment-178) and Pudukkottai Assembly segment (180). The first respondent originally appointed one T.A.Omprakash as her Chief Election Agent. In respect of each assembly segments, she had nominated 14 persons as counting agents. Polling took place for the constituency on 13.5.2009. The counting of votes took place in the premises of the Jamal Mohammed College at Tiruchirappalli in the presence of 24th respondent Returning Officer as well as Assistant Returning Officer and other Election officials. Though the first respondent was not present during the counting process, her Chief Election Agent and other counting agents were present inside the hall where the counting took place on 16.5.2009. It was her understanding that counting of votes took place in various rooms inside the college premises as per the assembly segmentwise. It was also alleged that after counting, the 24th respondent Returning Officer had declared that the present applicant (R-1 in the election petition) as having been successfully elected as a Member of Parliament. His winning margin was announced as 4335 votes. 6.It is on the basis of these admitted facts, the first respondent in her original election petition alleged that as per Form-20 prepared for each assembly constituency, she was leading in all the constituencies except for the Srirangam Assembly Constituency. In that Constituency, the first respondent got only 50767 votes, whereas the applicant, i.e., elected candidate had 70949 votes. She was given to understand by her election agent and other counting agents who were present inside the counting hall that there were various discrepancies in the manner of announcing votes polled for respective candidates. The first respondent's Chief Election Agent Om Prakash informed her that counting officials had announced results after seeing the details from the Electronic Voting Machine (EVM) that R-1 was leading with a large margin. But when the calculation statement reached the table of the Returning Officer and the Assistant Returning Officer, her margin level had become minimal in the other assembly segments except Srirangam Constituency. Her election agents had also noticed vast discrepancies in announcing votes polled in favour of the applicant while counting votes in Srirangam assembly segment. Therefore, at the end of counting, she made a request to the Returning Officer for recounting or retotalling the votes. But the 24th respondent did not consider her request for recounting of votes. Therefore, he had failed to perform the statutory duties and did not give any reason for refusing to entertain her request. 7.It was also further alleged that mandatory requirement for the voters to cast their votes in terms of Rule 49(O) of the Conduct of Election Rules, 1961 was not complied with. Because of this, the first respondent's margin of votes in the Pudukkottai and Kandarvakottai assembly segments got substantially reduced. It was her understanding through her polling agent that the polling officers had allowed voters to enter and do certain acts after the stage of Section 49(L) of the Rules without directing the voters to exercise their polling option or cancelling the voter slips even treated the voters who decided not to vote as votes. This was done to help the applicant. By the act of contravening the requirement of Rule 49 of the Conduct of Election Rules, 1961 and disregarding the directives of the Election Commission of India issued in the form of handbook, the chances of first respondent getting more votes were curtailed. The 24th respondent Returning Officer had failed to exercise his discretion properly. He had also not discharged his duties in accordance with rules 69 and 82 of the Conduct of Election Rules, 1961 as well as Rule 63 of the Conduct of Election Rules. 8.It was further alleged that in Form-20 issued assembly segmentwise regarding the final result, there was no reference to the number of voters who have exercised the option not to vote in terms of Rule 49. But, the Returning Officer had prepared a letter dated 21.5.2009 in which he mad mentioned 15444 persons had refused to exercise their franchise in all the six assembly segments. The statement was prepared by the Assistant Returning Officer of Pudukkottai assembly constituency only on 20.5.2009 after counting of votes. The first respondent also alleged that an oral request made by her agents at the time of counting of votes with the Returning Officer with reference to the particulars of persons who had opted to exercise their rights under Rule 49(O) did not materialize. It was also brought to her notice that the newspapers have reported after completion of poll process as if large number of voters have exercised their option under Rule 49(O). Under the amended rule 49(O), both voters who went to exercise their franchise as well as voters who did not want to exercise their franchise will have to comply with formalities upto the stage of Rule 49(L) of the Conduct of Election Rules. There is no discretion vested with the Returning Officer to depart from the said rules. 9.It was also alleged that in the assembly segments of Pudukkottai and Kandarvakottai, large number of voters were allowed to enter into the polling station without stopping them at the stage of obtaining their first signature in the register of voters in Form-17A. They were issued voting slips to reach the main unit officer. Thereafter without collecting the voting slips from them, the voters were allowed to exercise their poling option. Further, the voters were allowed to polling station abruptly. The voters thus were allowed to go freely without making proper endorsement. Their signatures as per Rule 49(L) were not accepted. It was further submitted that the accounts of votes recorded and Form 17-C prepared in this regard did not reflect about the number of voters who exercised rule 49(O) option. It was also brought to her notice that around 13434 voters from all six assembly segments had refused to exercise their franchise and availed the option under Rule 49(O) of the Conduct of Election Rules, 1961. But, in allowing them to exercise the option under Rule 49(O), the polling officers have breached their statutory duties. This had really vitiated and materially affected the election prospects of the original petitioner. It was also alleged that 15200 voters who have exercised their option under Rule 49(O), neither made any second signature nor made proper endorsement. Further, they were not counter signed by the Presiding Officer. The guidelines issued by the Election Commission is mandatory as they were issued in terms of the power vested under the Election Commission under Article 324 of the Constitution of India. The first respondent also understood from her Chief Election Agent that the LCD flashing figures showed higher number of votes in favour of the petitioner. She also reliably understood that 10500 votes have been wrongly calculated and accepted in favour of the applicant. This was not valid and improper inclusion of votes in favour of the applicant by making wrong calculation. Thus election results had become erroneous. 10.Further, the Election Commission had also sent a circular letter, dated 8.4.2009 informing that in order to identify the voters, the voters will have to produce any one of 13 documents set out therein. Despite the same, about 32000 voters in all six assembly constituencies were denied the right to exercise their franchise, even though their names were found in the electoral list only because they had produced Family Ration Card for identity purpose. Ultimately, the ration card can be a clear proof of their residence. The Election Commission had directed to exclude the family ration cards from one of the documents to be produced for voters' identity which was clearly erroneous and contrary to the statutory rules. Since the family ration card is legally a valid document, by the exclusion of the same, the first respondent had lost substantial votes as well as the election process was completely vitiated. It was further stated that the applicant had spent more than two crores by organizing meetings, putting up a huge dais, installing flash lights, putting up huge cutouts of their party leaders. Ever since filing of his nomination, he was lavishly spending money exceeding the election expenditure prescribed under Section 77 of the Representative of People Act and Rule 90 of the Conduct of Election Rules. The applicant had filed false accounts with the District Election Officer. The same has not been scrutinized properly by the Election Officer. In that view of the matter, the first respondent (original election petitioner) prayed for declaration of election of the applicant as the elected candidate of the Constituency No.24 Tiruchirappalli Parliamentary Constituency as null and void. 11.The election petition was presented under Section 81 read with 100(1)(d)(iii) and (iv) and 129 of the Representation of the People Act, 1951. It is necessary to extract these provisions for better appreciation of the contentions raised by the parties. Section 81 of the Representation of the People Act, 1951 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.]" Section 100(1)(d)(iii) and (iv) reads as follows: "100.Grounds for declaring election to be void.-[(1)Subject to the provisions of sub-section (2), if [the High Court] is of the opinion- (a) to (c) omitted (d)that the result of the election, insofar as it concerns a returned candidate, has been materially affected- (i) and (ii) omitted (iii)by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv)by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void.]" Section 129 of the Representation of the People Act, 1951 reads as follows: 129.Officers, etc., at elections not to act for candidates or to influence voting.-(1)No person who is [a district election officer or a returning officer,] or an assistant returning officer, or a presiding or polling officer at an election, or an officer or clerk appointed by the returning officer or the presiding officer to perform any duty in connection with an election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of the prospects of the election of a candidate. (2)No such person as aforesaid, and no member of a police force, shall endeavour- (a)to persuade any person to give his vote at an election; or (b)to dissuade any person from giving his vote at an election; or (c)to influence the voting of any person at an election in any manner. (3)Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment which may extend to six months or with fine or with both. [(4)An offence punishable under sub-section (3) shall be cognizable.]" 12.On the election petition, notice was ordered and parties were served both by Court and in some cases by substituted service. The elected candidate, who is the applicant did not file any written statement. But on the contrary he took out the present application in A.No.6569 of 2009 seeking for striking off the pleadings in the election petition as they were not maintainable, vague and filed with a view to abuse the process of law. Notice was ordered on the said application. 13.Heard the arguments of Mr.V.Raghavachari, learned counsel for the applicant (first respondent in the election petition) and Mr.R.Gandhi, learned Senior Counsel leading Mr.S.Thiruvenkatasamy for the first respondent in the application (original election petitioner). 14.In the present application to strike out the petition, it was alleged by the applicant that the first respondent was found not worthy of being returned by the electorate as she had failed to do justice to the office held by her both as a Councilor as well as the Mayor of the City Corporation. The applicant being a lawyer had done immense service to the public. That was the reason why he was elected. In filing the election petition, no proper allegations have been made. In different places in the election petition, she had come out with different pleas. The allegation found in paragraph 4 of the main election petition was denied. With reference to the allegations in paragraph 5, it was labelled as mischievous. The Returning Officer only on verification of number of votes polled had declared the results. There was no error in counting of the votes. Since votes polled were reflected in the Electronic Voting Machine, the question of tampering with votes will not arise. No complaint was given by the first respondent /election petitioner that EVM machines were not in order or that they were defective. The allegation found in paragraph 6 that votes were counted in different places and not in a common area was denied. The allegation that there were various discrepancies was too vague without being specified by the first respondent/ original election petitioner. Likewise, the allegation made in paragraph 7 also suffers from vice of vagueness. 15.To the knowledge of the applicant, the first respondent had accepted the results and no objections were raised by her election agents before the Returning Officer. The secrecy of votes is primordial in the election and that recounting of votes cannot be sought as a matter of right. Even otherwise, no such plea was made before the Election Officer. It was further stated that the EVM machines were brought from different booths to the counting station. The election petitioner did not pinpoint from which booth an error had crept in. The complaint regarding violation of voters in not following rule 49(O) was based upon false imagination and no complaint was given to the Returning Officer. The allegation that in Kandarvakottai and Pudukkottai assembly constituencies, there were large scale of option for Rule 49(O) is a vague allegation. It cannot be the subject matter of any enquiry. Further, no complaint was ever lodged. By making such vague allegations, she cannot have fishing expedition to gather proof. The allegation of violation of Rule 49(O) is made for the first time and not substantiated by any records. 16.The declaration of results are made in Form No.20 which were issued in terms of Rule 56 of the Conduct of Election Rules. The Returning Officer cannot add or supplement information set forth in Form 20. Voters who were not interested in voting for any of the candidates can validly exercise their option under Rule 49(O). It is only in Form No.17, the accounts of votes were recorded. It has been maintained properly by the Presiding Officer of the polling station. The Presiding Officer of the polling station had also furnished to the polling agents present at the close of poll true copies of the entries made in Form No.17-C. Therefore, disclosure of number of votes exercised under Rule 49(o) option was a needed exercise. There is no provision for recording the same in Form No.20. Whatever procedure followed in terms of Rule 49(O) has been followed even in Pudukkottai and Kandarvakottai assembly constituencies. The allegation to the contrary found in the original election petition was denied. The entry of voters into the polling station was based upon identification of candidates. Unless voting slip is issued, it is not possible for voters to exercise their franchise or to exercise their option under Rule 49(O). The persons who have exercised their option under Rule 49(O) are also persons who have participated in the election process. But the difference is that they are persons who have exercised their options not to vote in favour of any one of the candidates in the fray. They cannot be treated as non voters. With reference to the allegations in paragraphs 24 and 27, they are not only denied as vague, but the first respondent had not given any details. 17.With reference to the family ration cards not being accepted as a true identity of voters, it was contended that after the year 2006, there were spurious family cards under circulation. Therefore, the Election Commission thought it fit to reject it as a valid document. The allegation that 36000 voters were left out because of refusal to accept the family ration card as a valid identification is also vague and not supported by any records. The allegation made in paragraphs 29 to 33 are repetitions of previous allegations. On the other hand, the first respondent had stated in one place that she had lost by 32000 votes and in other place, she had stated that she had lost by 50000 votes only because of family ration cards were not allowed to identify the voters. But such vague allegations are made without having any data. With reference to spending of money by the applicant, it is stated that he had given correct particulars to the District Election Officer. They were scrutinized and acknowledged by the officer. There was no breach of rule 90. The allegation that he had spent more than two crores rupees was denied. It is a fantastic allegation made by the first respondent. The Election Commission on verification of records found that accounts were in order and had also refunded the original deposit made at the time of contesting elections. The allegation made against his getting elected was frivolous, vague and there was no triable issues before this court. 18.A counter affidavit was filed by the first respondent, dated 20.1.2010 opposing the said application. It is stated that in the election petition, it is not necessary to set out the evidence proposed to be adduced to substantiate the allegations. The application to strike off the election petition is an abuse of the process of the court. The statements made by her were based upon information received from the Chief Election Agent and there are triable issues. With reference to non observing the procedure under Rule 49(O), it must be stated that if statute clearly states a particular thing, it has to be done only in that manner prescribed and not in any other manner. This court without throwing out the election petition, in terms of power exercisable under Order VI Rule 16 must allow the trial to go on, so that the election petitioner can substantiate her allegations. 19.In the light of these pleadings, whether the application in A.No.6569 of 2009 is liable to be allowed and the pleadings of the first respondent are liable to be rejected is the only question that arises for consideration. 20.Mr.R.Gandhi, learned Senior Counsel submitted that it is not a fit case where the election petition can be thrown out even without a trial. He had produced Form No.20 as document Nos.4 to 9 to show that there were variations in the number of votes polled and that it did not contain the exercise of option under Rule 49(O). But the document No.10 requesting for recounting and retotalling signed by the original election petitioner's agents did not even contain any date or acknowledgment by the Returning Officer. The document Nos.11 and 12 only contain the number of voters who did not exercise their option under Rule 49(O) of the Conduct of Election Rules. Not following the procedure under Rule 49(O) itself can be a ground which can be raised in the election petition. Section 100(1)(d)(iv) clearly stipulates that non compliance of provisions of the Act or Rules can be a ground to maintain the election petition. 21.In this regard, the learned Senior Counsel relied upon a judgment of the Supreme Court in V.S. Achuthanandan v. P.J. Francis reported in (1999) 3 SCC 737 and relied on the following passage found in paragraph 22, which reads as follows: "22.Similarly, the learned trial Judge was not justified in rejecting the election petition without affording the appellant opportunity to place on record the circumstances justifying the re-count as prayed for by him. It is true that on vague and ambiguous evidence no court can direct re-count. But it is equally true that the doors of justice cannot be shut for a person seeking re-count without affording him an opportunity of proving the circumstances justifying a re-count. In his petition the appellant had given details of the alleged illegalities and irregularities committed by Respondent 1 which according to him justified the holding of a re-count. The learned trial Judge relied upon some judgments where re-count was not allowed after trial and wrongly dismissed the