IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 11/04/2003 Coram THE HONOURABLE MR. JUSTICE K.P.SIVASUBRAMANIAM ELECTION PETITION No.6 of 2000 R.Thirumavalavan .. Petitioner -Vs- 1.Sumathi Udayakumar 2.E.Ponnuswami 3.R.Ganagasabai 4.V.Kamaraj 5.D.Muruganandham 6.The Returning Officer, Chidambaram Parliamentary Constituency, Collectorate, Cuddalore District. .. Respondents (R.6 deleted as per the order of this Hon'ble Court (K.P.S.,J.) dt.3.4.2002). This Election Petition is filed under Sections 80 and 81 read with Sections 100(1)(b), 100(1)(d)(iv), 101 and 123 (7) read with 136 of the Representation of the People Act, 1951 praying to declare the election of the second respondent to the 13th Lok Sabha from Chidambaram (SC) Parliamentary Constituency as null and void and to declare the petitioner as duly elected candidate for the above Constituency. !For Petitioner : Mr.G.Subramaniam, Senior Advocate for M/s.K.Balakrishnan and another. ^For Respondent-2 : Mr.R.Thiyagarajan, Senior Advocate for M/s.D.Gubendragunabalan and M.Muthappan For Respondents-1&4 : Exparte. For Respondents-3&5 : No Appearance :O R D E R In this election petition, the petitioner/defeated candidate questions the election of the second respondent in the general elections held for the 13th Lok Sabha, for Chidambaram (S.C. Parliamentary Constituency). 2. The Election Commissioner of India on 11.7.1999 announced the schedule of election as follows:- Date of commencement of final nomination 11.8.1999. Last date for filing nomination 18.8.1999. Date of agreeing of nomination 19.8.1999. Last date for withdrawal 21.8.1999 Date of polling 5.9.1999. 3. The petitioner being the convenor of Dalit Panthers of India contested the elections with the alliance of Tamil Manila Congress in Cycle symbol. He filed his nomination on 18.8.1999 for contesting in Chidambaram (SC Parliamentary Constituency), before the 6th respondent. The respondents 1 to 5 also filed their nominations. The second respondent was set up by Pattali Makkal Katchi (P.M.K.). After scrutiny of nominations, six candidates were declared as contestants. 4. After elections, counting of votes commenced on 6.10.1999 and the second respondent was declared as successful candidate for the Parliamentary Constituency. The respective candidates were declared to have secured the following votes:- 1. Sampath Udhayakumar 1,50,794 2. Thirumavalavan (Petitioner) 2,25,768 3. Ponnusamy (second respondent) 3,45,331 4. Kanagasabai 422 5. Kamaraj 384 6. Muruganandham 1,606 Total valid votes 7,24,305 Total votes polled 7,32,994 Total rejected votes 8,689 Total valid votes 7,24,305 5. The petitioner submits that the election to the said Constituency has to be declared as void as the result of the election having been materially affected on account of various material irregularities alleged to have been committed by the second respondent. He also alleges non-compliance of the mandatory provisions of the Representation of the People Act, hereinafter called the Act, the Conduct of Election Rules, the instructions given to the Returning Officers and the guidelines issued to the candidates. The hand book to the Returning Officers as well as candidates have been issued under authority of law by the Election Commission of India. The petitioner further contends that in terms of the provisions under Section 15 of the Representation of the People Act, 1950, there shall be an electoral roll for every Constituency, prepared in accordance with the Act Rules. Section 18 provides that no person shall be entitled to be registered in the electoral roll for any Constituency more than once. Under Section 19, every person who is ordinarily a resident in the Constituency shall be entitled to be registered in the electoral roll for that Constituency. In terms of Section 33 of Representation of People Act, 1951, the requirements for filing nomination papers are stated and under Section 33 (2), procedure for reservation of seats and the qualifications for a candidate are prescribed. In the case of a member claiming to be a Scheduled Caste or Scheduled Tribe of the State, a declaration is sought for. The second respondent is a registered voter in Villivakkam Assembly Segment which is one of the segments in the North Madras Parliamentary Constituency. If he is a voter of North Madras Parliamentary Constituency, the law prohibits him from exercising his franchise or casting his vote in any other Constituency. If the voter votes in a different Constituency, he would be guilty of electoral offence punishable under the relevant provisions of the Act and the Indian Penal Code. It is also known fact that a voter cannot exercise his vote in a Constituency other than the one in which he is registered as a voter. It is also further stated that such voting cannot be made without the actual connivance and assistance of the Presiding Officer or the Assistant Presiding Officer. When a Presiding Officer or other electoral staff in charge of a particular booth does something prohibited by law, they would not be discharging the functions enjoined on them, by law. The second respondent knowing fully well that he is not a registered voter in Chidambaram, SC Parliamentary Constituency and knowing fully well that he is not one of the voters in polling booth No.4 2 situated in Government Arts College, Virudhachalam, forcibly entered the polling station accompanied by his partymen and attempted to cast a vote. According to the petitioner, the Presiding Officer abetted with the second respondent and succumbed to the force and had allowed the second respondent to cast a vote in that booth. The said action on the part of the second respondent and the Presiding Officer of the said booth was totally irregular and illegal. The second respondent had thereby interfered with the normal electoral process and had coerced the officials to adulterate the election. The Presiding Officer, being a person appointed to discharge the duties under the Representation of People Act must have high commitment to the Rule of Law regardless of personal interest and not to yield to any pressure from inside or outside the Government. He is answerable to the rule of law alone. The action of the Presiding Officer in circumventing the rules to the advantage of the second respondent, was a danger to the democracy and to the rule of law. The action of the second respondent in coercing and enlisting the support of the Presiding Officer and other persons in order to cast the vote in Virudhachalam booth was nothing but a clear, voluntary and wilful violation of the mandatory provisions of the Representation of People Act, 1951 and the conduct of Election Rules, 1961. This is nothing but a clear commission of corrupt practice by the second respondent. As contemplated under Section 123 (7), the conduct on the part of the Presiding Officer in allowing the second respondent to vote in that booth was a clear instance of obtaining his assistance and for the furtherance of the prospects of the candidate. 6. It is further stated that the conduct of the second respondent in procuring the assistance of the Presiding Officer and casting a vote was a material irregularity, materially affecting the election process. The same also amounts to non-compliance of the provisions of the Constitution and the provisions of the Act and other rules, orders and guidelines contained in the Hand book issued to the Returning Officers. The action on the part of the second respondent had resulted in premium to the high handedness of the second respondent, various other voters, agents and partymen belonging to the second respondent. The fact that the second respondent had cast his vote at Virudhachalam Arts College, despite not being a voter, spread like wild fire and had emboldened partymen belonging to the second respondent who indiscriminately entered the polling booths and had cast votes improperly and the same was done with the active assistance of the Presiding Officer. 7. The petitioner further submits that the 1st respondent had filed a complaint with the Election Commission of India and also by the Communist party (Marxist, Cuddalore). Its District Secretary also lodged a complaint with the Election Commissioner. Similar complaints were filed before the Electoral Officer and before the Chief Election Commissioner of India on 22.10.1999. The petitioner further contends that the Election Commission of India had called for a report from the Chief Electoral Officer, Tamil Nadu and to take disciplinary and criminal action against the Presiding Officer of the said booth. The District Collector had also initiated disciplinary action against the Presiding Officer. However, no order has been passed by the Election Commissioner. The second respondent has without any due authority received the ballot paper from the Presiding Officer and had put the said ballot paper in the ballot box, which is not authorised under the law. Without any due authority he had interfered with the ballot box and he had fraudulently committed the said illegal Act wilfully and the Presiding Officer of the polling booth had also abetted the same resulting in irregularities. The second respondent was therefore guilty of electoral offences under Section 136 (d) (e) (f) (g) of the Representation of the People Act and is liable to be punished under Section 1 36 (2) (b) of the Act. He has also committed offences under Section 1 71 (c) (d) of the Indian Penal Code and punishable under Section 171 (f). 8. The petitioner further contends that his Chief Election Agent Mr.Vinayagamoorthy also lodged a criminal compliant with the Virudhachalam Police Station on 30.10.1999. He requested the Inspector of Police to take the complaint on file and investigate the same and to take appropriate proceedings. In the news papers also, the news item relating to the conduct of the second respondent were published in detail. In the "Hindu" dated 17.10.1999, it was also reported that action was being taken by the Chief Electoral Officer against the Presiding Officer and that the voter was allowed to vote by the Presiding Officer on the strength of his statement that the Revenue Divisional Officer, Ponneri, who is the Electoral Registration Officer of the Villivakkam Assembly segment had informed him that he can vote anywhere on the basis of the extract of the electoral roll of that assembly segment. Various political parties have also issued statements demanding action to be taken against the second respondent for having deliberately infringed the provisions of the Act and Indian Penal Code. 9. Petitioner further submits that the fact that he had voted at Virudhachalam in the said booth is not disputed by the second respondent himself. He has admitted his action by giving a statement to the Press. The said statement of the second respondent was published in " Dinamalar" dated 18.10.1999. It was also revealed that the second respondent has stated that he was a voter in the Villivakkam Assembly segment and that the Revenue Divisional Officer, Ponneri has given a Certificate to that effect, which he had shown to the Presiding Officer of the booth at Virudhachalam. It was only on showing the said Certificate, he was allowed to vote in the said booth and therefore he has not committed any wrong, according to the statement of the second respondent. In the "Hindu" published on 20.10.1999, it was reported that the Election Commission has received a detailed note from the Chief Electoral Officer of Tamil Nadu on the episode and that the second respondent has been allowed to vote in a polling booth even though his name was not found in the voters list. It was further reported that the Chief Electoral Officer of Tamil Nadu had initiated action against the Presiding Officer of the booth where the second respondent had exercised his franchise. 10. The petitioner further submits that the second respondent himself has admitted that he had voted in Virudhachalam and thus in law it amounts to an admission by the second respondent and he was thus guilty of committing an offence under Section 136 of the Representation of People Act and 171 (c) (d) of the Indian Penal Code and punishable under Section 171 (7) of the Act. 11. The petitioner further states that the election of the second respondent was vitiated under Section 100 (1) (b) and also Sections 10 1 (d) (iv) besides being guilty of the offence under Section 136 of the Act and therefore his election must be declared as invalid. While the second respondent has secured 3,45,331 votes, the petitioner has secured 2,25,768 votes. The petitioner had conducted himself within the frame work of law and had scrupulously followed the provisions of the Constitution and the Act and the conduct of Election Rules. 12. The petitioner further contended that in view of the fact that the election of the second respondent was liable to be set aside under Section 100 of the Act, he had prayed that this Court may declare election of the returned candidate to be void and under Section 101 of the Act that the petitioner who came second has to be declared as elected from Chidambaram (SC Parliamentary Constituency). The petitioner also claims to have complied with all the requirements and ultimately he had prayed for declaration that the election of the second respondent was null and void and to declare that the petitioner was the duly elected candidate to the Constituency. 13. The second respondent herein, filed an application under Section 83 (1) (a) and 88 of the Representation of the People Act, the Application No.O.A.58 of 2001 seeking for striking out the allegations contained in paragraphs 8 to 11, 14, 16 to 21 in the election petition. A detailed affidavit in support of the said petition was also filed by the second respondent. A counter was filed by the election petitioner. 14. This Court after hearing both parties and after having dealt with the issues in detail by order dated 19.10.2001, partly allowed the said application only to the extent of striking out paragraph 23 alone. In other respects, the said application was dismissed and the election petition was directed to be taken up for trial on 2.11.2001. 15. After the disposal of O.A.No.58 of 2001 on 19.10.2001, the second respondent filed his written statement on 30.10.2001. The second respondent pleaded as follows. 16. Under the provisions of Representation of People Act, hereinafter called the Act, an election can be called in question only by election petition and filed in accordance with Chapter-2 of the Act. The grounds on which the petition can be filed are set out under Section 100 of the Act. In the event of any allegation of improper reception or rejection of any vote or reception of an y vote which is void, then the pleadings must clearly state that the election in so far as the respondent was concerned had been materially affected. There are no pleadings to the said effect. One of the grounds available under Section 100 for declaring the election as void is the commission of corrupt practice by a returned candidate. Such corrupt practices should be confined to Section 123 of the Act. Except for referring to Section 1 23(7), the election petition does not set out the material facts or particulars of ingredients of the corrupt practice. Though the requirements under Section 123(7) are very clear and specific, the election petition does not set out the material facts as to whether and how the respondent is said to have obtained or procured for the furtherance of the prospects of his election, any assistance from any person in the service of the Government. The allegation in the said regard was vague, indefinite and imaginary. Under Section 136 (d), if any person without authority receives or supplies any ballot paper or is in possession of any ballot paper, such a person will be guilty of an electoral offence. The allegations in the election petition do not satisfy the requirements under Section 136 (d). Section 136 (e) makes the person guilty of offence if he fraudulently puts into the ballot box anything other than the ballot paper. Here again in the election petition no proper allegations have been stated to satisfy the ingredients under Section 136 (e). The allegations do not fall either under Section 136 (d) or under Section 136 (e). The various allegations in the election petition do not make out a case of corrupt practice under 1 00 (b) of the Act. Assuming that the allegations are sufficient to make out a case under Section 123(7) and under Section 100 (b), in the absence of material facts and particulars as to how the result of the election has been materially affected, there is no ground for challenging the election. Out of the total polled votes of 7,32,994, the respondent had secured 3,45,331 votes and won the election with a difference of 1,19,563 votes. When this respondent went to polling booth No.42 on 5.9.1999, he was fully aware that his name was not in the electoral roll. He had with him a certified copy of the voters list pertaining to Villivakkam Assembly segment of North Madras Parliamentary Constituency. The Presiding Officer in the booth asked whether he is a voter in the voters list of the booth. The respondent gave a categorical reply that he is not a voter and he also showed to him the certified copy of the voters list relating to Villivakkam Assembly segment. The Presiding Officer then pointed out to the respondent that he can cast is vote in that Constituency in booth No.42, if he is a voter in some other place. The respondent did not procure or obtain or did anything to obtain the assistance from the Presiding Officer of booth No.42 for the furtherance of the prospects of his election. The said Presiding Officer has also given an affidavit to the effect that he permitted this respondent to cast his vote in booth No.42. Assuming that such permission was an improper reception, in the absence of any material fact of any material particulars as to how the result had been materially affected by such reception, the petitioner has no ground to challenge the election. The permission granted by the Presiding Officer will not amount to a corrupt practice. The alleged electoral offence in paragraph-7 of the petition was misconceived. The allegations do not set out the electoral offence alleged to have been committed by the respondent. The further contention that a voter in a Constituency cannot exercise his vote in a different Constituency without the active support and connivance and assistance of the Presiding Officer and the election staff, are vague, general and indefinite. There is no allegation that any particular Officer or election staff for having supported the respondent or for having connived with him and assisted him in casting his vote. The contention that the respondent forcibly entered booth No.42 was false. He never attempted to cast his vote in the said booth. He did not ask the Presiding Officer whether he could vote in the booth nor he did seek his assistance in that regard. Therefore, there was no question of the Presiding Officer having abetted the respondent in casting of the vote in the booth. There is no basis for the contention that he had interfered with the normal electoral process and had coerced the officials to adulterate the election process. He did not also enlist the support of the Presiding Officer or the other persons in the booth for casting the vote. 17. The respondent further states that it is not alleged as to how and in what manner and at what point of time the assistance of the Presiding Officer in booth No.42 was procured. It was mischievous to allege that the casting of the vote by the respondent in booth No.42 had materially affected the election process. There is no basis for the allegation that number of voters who were not registered in the Constituency had voted in Chidambaram (SC Parliamentary Constituency). No facts and circumstances have been alleged. As regards the complaints which are alleged to have been made against the respondent, the petitioner has not alleged the details or the gist of the complaints alleged to have been made against the respondent. The respondent further states that he understands it to be true that the Election Commission of India declined to interfere with the complaints made by the petitioner. The allegation as if on 5.9.1999, he had entered the polling booth without due authority and had received the ballot paper from the Presiding Officer and fraudulently put it into the ballot box were incorrect and misleading. The respondent did not commit any fraudulent Act. It was incorrect to allege that the respondent was allowed to vote by the Presiding Officer on the strength of the statement that the Revenue Divisional Officer had informed that this respondent that he can cast his vote anywhere on the basis of the extract of the voters list of the assembly segment. He has not committed any violation of the provisions of the Act or any offence under Indian Penal Code. The respondent would further submit that the statement which appeared in newspaper in "Dinamalar" dated 18.10.1999 clearly sets out the circumstances in which the respondent was allowed to vote in booth No.4 2 as admitted by the petitioner himself. The permission granted to the respondent by the Presiding Officer in the polling booth does not amount to an admission of guilt under Section 136 of the Act and also under Sections 171 (C) and (D) of Indian Penal Code. 18. The respondent further contends that the petitioner has not alleged as to how such a casting of his vote had materially affected the result of his election. 19. It is further contended that an election petition must be signed and verified by the petitioner in the manner indicated in C.P.C for verification of the pleadings. The election petition has not been verified properly by the election petitioner. Therefore the election petition was liable to be rejected. The verification does not specify as to how some of the paragraphs are verified either as true to his knowledge or how the facts stated in other paragraphs were found to be true to the best of his information. The affidavit accompanying the election petition is also not been verified as required by law. The petitioner has not disclosed any personal knowledge of the allegations in paras-1, 2, 3, 4, 6, 12 and 16. Therefore, the election petition was liable to be dismissed for want of proper verification. The respondent further submits that personation is not a corrupt practice. Votes cast by personation are void votes. The election could be avoided only if the reception of votes cast by impersonation has materially affected the result. The mere misdescription in the electoral roll does not constitute impersonation. A person is said to vote by personation when he casts the vote in the name of another or in a fictitious name. Therefore the allegation that the respondent had committed an electoral offence and also a corrupt practice was nothing but a misconception of the relevant provisions of the Representation of People Act. 20. After the filing the written statement, the following issues were framed for trial on 7.3.2002:- (1) Whether the election of the second respondent to the 13th Lok Sabha from No.12, Chidambaram (SC) Parliamentary Constituency is to be declared as null and void? (2) Whether the conduct of the second respondent in having voted in Vridachalam Assembly Constituency, would render his election null and void? (3) Whether the second respondent is guilty of corrupt practice as contemplated under Section 123(7) of the Representation of the People Act? (4) Whether the election of the second respondent is liable to be declared void for non-compliance of the provisions of the Representation of People Act, 1951 and of the Constitution of India? (5) Whether the election petitioner is entitled to be declared as elected from Chidambaram (S.C.) Parliamentary Constituency? (6) To what other reliefs the petitioner is entitled to? 21. Thereafter, the trial was taken up and the examination of witnesses by both sides as well as that of Court witness No.1 were over on 23.9.2002. On 11.10.2002, when the election petition was posted for arguments, after the argument of the learned Senior counsel for the petitioner had been completed, the learned Senior counsel for the second