IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.5.2011 C O R A M : THE HONOURABLE MR.JUSTICE V. DHANAPALAN AND THE HONOURABLE MR.JUSTICE A. ARUMUGHASWAMY W.P.No.12266 of 2011 and M.P.No.1 of 2011 V.Subhashini ...Petitioner -vs- 1.The Election Commission of India, rep.by its Chief Election Commissioner, New Delhi. 2.The Returning Officer, (The Revenue Divisional Officer), 147, Perambalur Assembly Constituency, Revenue Divisional Office, Perambalur. 3.S.Krishnamurthy 4.R.Tamizhselvan 5.M.Prabaharan 6.J.Jayabalaji 7.G.Shyam Sundar 8.V.P.Sellamuthu 9.S.Ravichandran ... Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration declaring that the postal ballots polled in No.147, Perambalur (S.C.) Assembly Constituency as not valid in the eye of law. For petitioner :: Mr.V.Anand For respondents :: Mr.G.Rajagopalan, SC for M/s.G.R.Associates for R1 ***** https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by V.Dhanapalan, J.) We have heard Mr.V.Anand, learned counsel for the petitioner and Mr.G.Rajagopalan, learned Senior Counsel appearing for the first respondent. 2. The petitioner has moved this Court for issuance of a writ of declaration declaring the postal ballots polled in No.147, Perambalur (S.C.) Assembly Constituency as not valid in the eye of law. 3. According to the petitioner, she is a candidate for the General Election to the Tamil Nadu State Legislative Assembly, 2011 from No.147, Perambalur (S.C) Assembly Constituency and her symbol is Ceiling Fan. It is her case that elections were to be held in accordance with the Representation of People Act, 1951 read along with its amendments as well as the Rules and Regulations laid down by respondents 1 and 2 in accordance with law. 4. Further, according to the petitioner, after the commencement of the process of election but before the commencement of voting, the second respondent sealed the electronic voting machines as well as the ballot box for the postal ballots in the aforesaid constituency. Thereafter, the sealed ballot box for postal ballots was kept in safe custody since postal ballot papers were to be issued to the respective voters only on the day of election, viz., 13.4.2011. While so, on 13.4.2011, voters polled their votes in their electronic voting machine which was subsequently kept in safe custody for the purpose of counting votes on 13.5.2011. However, the postal ballot box was kept in the office of the second respondent for polling the postal ballots. The postal ballots can be polled till the previous day before the counting of votes is started on the electronic voting machines. 5. Under the said circumstances, the petitioner received a communication from the second respondent under Na.Ka.A.3/9194/ 2010, dated 30.4.2011 indicating that all the candidates should be present on 02.5.2011 at 11.00 A.M. for the purpose of sealing and securing the postal ballot box with reference to the aforesaid constituency. The said proceeding narrates as if fresh guidelines have been issued from the first respondent and only in pursuance thereof, the letter was being issued. 6. it is further alleged in the petition that even before the said communication was received by the petitioner, i.e. on 29.4.2011, the electoral ballot box was found to have been in an unauthorized condition and the lock and seal had been broken open and some of the postal ballots deposited had also been removed from the box in the absence of the candidates or their agents. Immediately on noticing the same, the petitioner is said to have made a representation to the https://hcservices.ecourts.gov.in/hcservices/ second respondent. Despite the same, the second respondent called for an official press conference on 30.4.2011, in which the Electoral Officer briefed the press about the number of votes received. 7. The grievance of the petitioner is that the second respondent does not have the power to open the ballot box before the process of counting starts, that too, in the absence of the candidates or their agents. Thereafter, only to justify her stand, by the aforesaid communication dated 30.4.2011, the second respondent called upon the candidates to affix the seal and keep the ballot box under lock and key, which is not in accordance with law and is in violation of the principles of natural justice. Aggrieved by the above action of the second respondent, the petitioner has sought for a declaration to declare the postal ballots polled in the aforesaid constituency as not valid. 8. The learned counsel appearing for the petitioner has vehemently contended that once the postal ballots were allowed to be taken into account and counted, the process of election would be completely defeated inasmuch as the votes have been removed from the ballot boxes. Therefore, the communication issued to the petitioner requesting her to be present on 02.5.2011, may also defeat the election process. 9. On the other hand, the learned Senior Counsel appearing for the first respondent would contend that based on the instructions, dated 15.3.2010 issued by the Chief Election Commissioner, which was communicated to the petitioner on 30.4.2011, all the candidates who contested in the election were requested to be present for the purpose of sealing and securing the postal ballot boxes. He would further contend that the writ petition is not maintainable in view of a specific bar under Article 329(b) of the Constitution of India, whereby it is made clear that once the Election Process is started, there is a bar for any Court to interfere in electoral matters. 10. Further, it is also a settled legal position that in electoral matters, once the election process is commenced, i.e. from the date of issuance of notification till the declaration of results, no Court is empowered to interfere in such matters. The only grievance expressed by the learned counsel for the petitioner is that the instructions issued by the Election Commission of India are not proper. If that is so, the remedy available to the petitioner is not by way of this writ petition. If the petitioner is aggrieved over the instructions issued by the Election Commission of India, it is always open for her to agitate her grievance before the appropriate Forum, as provided under the relevant provisions of law. 11. Therefore, in view of the specific bar under Article 329(b) of the Constitution of India, which mandates a prohibition in hearing an election matter which may be questioned only by way of an election https://hcservices.ecourts.gov.in/hcservices/ petition, this writ petition under Article 226 of the Constitution of India is not maintainable and the same is dismissed. However, there will be no order as to costs. Consequently, the connected miscellaneous petition is also dismissed. Sd/ Assistant Registrar /true copy/ Sub Asst.Registrar js To 1. The Chief Election Commissioner, Election Commission of India, New Delhi. 2. The Returning Officer, (The Revenue Divisional Officer), 147, Perambalur Assembly Constituency, Revenue Divisional Office, Perambalur. 1 cc To The Government Pleader, SR.31376 1 cc To M/s.G.R.Asociates, Advocate, SR.31303 2 ccs To Mr.V.Anand, Advocate, SR.31307 W.P.No.12266 OF 2011 and M.P.No.1 of 2011 PA(CO) SRA (25/05/2011) https://hcservices.ecourts.gov.in/hcservices/