1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 22ND DAY OF OCTOBER 2010 THE HON'BLE MRS. JUSTICE R. BANUMATHI Election Petition No. 1 of 2006 and OA. NO. 825 of 2010 ELP. No. 1 of 2006 M. Varalakshmi W/o. V.T. Margabandu residing at New NO. 52, Old No. 25/1, Thatha Theru, Saidapettai, Vellore – 12. ... Petitioner -VS- 1. K. Pandurangan residing at Devikapuram Village, Madhanur Post, Vanniyambadi Taluk. 2. J. Kumaresan residing at 29, Pillaiyar Koil Street, Vadapudupatti Village and Post Vanniyambadi Taluk. 3. C. Sivam residing at 1/414, New Street, Abdullahpuram Post and Village, Vellore – 10. 4. M. Venkatesan residing at 4/49, Vinayagar Koil Street, Palapadi Village, Gururaja Palayam Post, Vellore Taluk. 5. V. Kali Selvan residing at New NO. 1176, Old NO. 161, Thendral Nagar, Vengikkal Post, Thiruvannamalai. 6. P. Deivasigamani residing at New NO. 31, Old NO.11, Thoppasami Koil Street 1, Saidapettai, Vellore – 632 012. https://hcservices.ecourts.gov.in/hcservices/ 2 7. T. Natarajan residing at 92, Mullai Nagar Virupatcharam, Vellore – 623 002. 8. S. Panneer Selvam residing at 59A/1-94, Bajanai Koil Street, Sitheri, Vellore – 632 002. 9. G. Veeramani residing at M.M. Nagar, Mathanoor Village and Post, Vaniampadi Taluk. 10.The Returning Officer, 47, Anaicut Assembly Constituency Vellore and Assistant Commissioner (Excise) Vellore. * R10 is ordered to be struck off from the array of respondents as per the order of this Hon'ble Court dated 18.08.2007 made in O.A.No. 916/2007 in Election Petition No. 1/2006. ... Respondents This Election Petition praying that this Hon'ble Court be pleased to:- (i) Declare the election of the Returned candidate, namely, the first respondent herein from No. 47, Anaicut Assembly Constituency (Tamilnadu) in the election held on 08.05.2006 in which results have been declared on 11.05.2006 as void and set aside the same (ii) Pass an order directing fresh poll in polling station No. 13, Chinnapallikuppam in 47 Anaicut Assembly Constituency (Tamilnadu) as per provision of Representation of People Act 1951 and Conduct of Election Rules, 1961 and order consequential counting and declaration of results. (iii) Declare the petitioner as duly elected as a member of the Tamilnadu Legislative Assembly from No. 47 Anaicut Assembly Constituency (Tamilnadu) in the election https://hcservices.ecourts.gov.in/hcservices/ 3 held on 08.05.2006 (in which results have been declared on 11.05.2006) (iv) Directing the first respondent to pay the costs of this election petition. O.A.No. 825 of 2010 K. Pandurangan ... Applicant / Respondent -VS- M. Varalakshmi ... Respondent/Petitioner This Original Application praying that this Hon'ble Court be pleased to send the deposition of Mr.A.S. Prahalathan (P.W.3) and Ex.P5 to the Government Handwriting Expert, Forensic Sciences Department, Kamaraj Salai, Chennai – 4 for comparison and report. The above Election Petition and Original Application No. 825 of 2010 coming on this day before this Court on various dates and finally coming on 22.10.2010 and upon hearing the arguments of M/s. T.V. Krishnamachari and V.K. Elangho, Counsel for the Election Petitioner and of M/s. P.N. Prakash for A. Saleem, Counsel for the 1st respondent and of M/s. T.S. Kannaiyan, and D.Dayalan, Counsel for the 9th respondent and of Mr.M.R. Raghavan, Standing Counsel for Election (The Returning Officer) for the 10th respondent and respondents 2 to 8 called absent and set exparte and upon reading the Election petition filed by the Election petitioner and counter statement of 1st respondent filed herein and upon perusing the evidence adduced therein and also the exhibits marked thereto and this matter having https://hcservices.ecourts.gov.in/hcservices/ 4 stood over for consideration till this date and coming on this day before this Court for orders in the presence of the said advocates for the parties hereto and this Court having observed that the Election Petitioner is not entitled to any declaration as sought for by her in the Election Petition. The Court made the following order:- Petitioner seeks to (i) declare the election of the Returned candidate, viz., the 1st Respondent from No.47, Anaicut Assembly Constituency (Tamil Nadu) in the election held on 08.05.2006 in which results have been declared on 11.05.2006 as void and set aside the same; (ii) pass an order directing fresh poll in Polling Station No.13, Chinnapallikuppam in No.47, Anaicut Assembly Constituency (Tamilnadu) as per the provision of Representation of People Act, 1951 and Conduct of Election Rules, 1961 and order consequential counting and declaration of results; (iii) declare the Petitioner as duly elected as a member of the Tamilnadu Legislative Assembly from No.47, Anaicut Assembly Constituency (Tamilnadu) in the election held on 08.05.2006. 2. Petitioner-Varalakshmi contested in the Tamilnadu Legislative Assembly Election 2006 as Pattali Makkal Katchi [PMK] candidate from No.47, Anaicut Assembly Constituency. Polling took place in 221 Polling Stations on 08.05.2006. Electronic Voting Machines [EVMs) have been used for https://hcservices.ecourts.gov.in/hcservices/ 5 polling of votes in those 221 Polling Stations and the polling was closed at 5.00 P.M. on 08.05.2006 and the EVMs were sent to Thanthai Periyar Polytechnic, Vellore on 08.05.2006 itself and kept in a strong room. Counting of votes polled took place on 11.05.2006 from 8.00 A.M. onwards. 1st Respondent-Pandurangan was declared as elected on 11.05.2006 with a margin of "53" votes. 3. The averments in the Election Petition are that EVM from Polling Station No.13, Chinnapallikuppam was counted in Round No.2 in Table No.1. The said EVM was verified and found that it was pertaining to Polling Station No.13, Chinnapallikuppam. The seals were removed, but when the button was pressed, there was some problem. One Ms.Geetha, technician was sent for and she came and verified and told that by mishandling of EVM, the result got erased. The said EVM for No.13, Chinnapallikuppam was counted in Round No.2 in Table No.1 showed against each candidate " 0 – 0 – 0" as the result. The result was also written in the black board which was noted by the Petitioner's counting agent Mr.Parthasarathy [PW4]. Petitioner gave objection to the Election Observer at 12.10 P.M. on 11.05.2006 seeking re- polling. According to Petitioner, everyone reconciled to the position that there will be re-polling in Polling Station No.13, Chinnapallikuppam and hence, the Petitioner and her Chief Election Agent and also the Counting Agents rushed to Chinnapallikuppam which was 35 to 40 km away from https://hcservices.ecourts.gov.in/hcservices/ 6 the place of counting. 4. At about 5.30 P.M., the Chief Election Agent of the Petitioner Mr.N.T.Shanmugam [PW2] received a call from the Collector asking them to come to the place of counting. When they came to the place of counting, 1st Respondent who was the then Minister was with the District Collector. The Returning Officer and the District Collector told the Petitioner and her Chief Election Agent that some mistake has happened and that the votes polled in Polling Station No.8, Gururajapalayam have not been counted and that the EVM pertaining to Polling Station No.8, Gururajapalayam was kept in the adjoining room and that the votes polled in the EVM pertaining to Polling Station No.13, Chinnapallikuppam was already counted and it has been mistakenly taken into account as Gururajapalayam. Petitioner and her Chief Election Agent made it clear that the votes polled in No.8, Gururajapalayam have already been counted and that the new version is an afterthought and that the EVM pertaining to No.8, Gururajapalayam has already been counted and the votes polled have been entered in the black board and filled up in Form-20. Further case of Petitioner is that before 12.00 noon, the counting in all the EVMs was over and in so far as Polling Station No.13, Chinnapallikuppam, the votes got erased because of mishandling and it showed "0–0–0" against each candidate. Insofar as the votes polled in Polling Station No.13, Chinnapallikuppam, fresh https://hcservices.ecourts.gov.in/hcservices/ 7 poll was the only remedy and the results should not have been declared. According to the Petitioner, EVM pertaining to Polling Station No.8, Gururajapalayam was already counted in the morning of 11.05.2006 in Table No.10 in Round No.1. After 5½ hours, it was stated that the EVM pertaining to Polling Station No.8, Gururajapalayam was not counted and that it is not permissible in law. For his own convenience, the Returning Officer cannot set aside the earlier proceedings followed in counting of votes polled in EVMs followed in Rule 55(C), 56(C) and 57(C) in Rule 66(A) of Conduct of Election Rules, 1961 and adopt a new procedure and this has materially affected the election. 5. As far as Polling Station No.13, Chinnapallikuppam is concerned, in the result sheet, the Returning Officer has made an entry that 413 votes have been polled infavour of the 1st Respondent while EVM showed "0–0–0" against each candidate and Part-II of Form 17-C is illegal and void. The said 413 votes has to be eschewed from consideration in which event the Petitioner is entitled to be declared since the margin of difference of votes is only "53" votes. Mishandling of EVM has materially affected the results of the election in so far as the Returned candidate is concerned. Petitioner seeks declaration of the election of Returned candidate as void and seeks for a direction for fresh poll in Polling Station No.13, Chinnapallikuppam and declare the Petitioner as duly elected candidate as a https://hcservices.ecourts.gov.in/hcservices/ 8 member of Tamilnadu Legislative Assembly from No.47, Anaicut Assembly Constituency. 6. Stating that he has learnt that there was interchange of EVMs, 1st Respondent has filed counter contending that at no point of time, re-poll was ordered for No.13, Chinnapallikuppam. Allegations of irregularities and illegalities in the counting of votes have been subsequently invented as an afterthought. Electronic Voting Machines for Polling Station Nos.8 and 13 were transmitted to the strong room of the counting centre with seals intact. Insofar as EVM of Polling Station No.8, Gururajapalayam, it was placed in the additional storage room and the Election Commission had been informed by the developments and that there was no illegality in the counting process. As mandated under Sec.83(1)(a) of R.P. Act, material facts have not been pleaded and the Election Petition is lack of material facts and the Petition is liable to be rejected. According to 1st Respondent, the final work of counting has been carried out as per law and neither the Petitioner nor any of her counting agents raised objection either orally or in writing about the details which is now being sought to be made belatedly in the Election Petition. The votes polled in Polling Station No.13, Chinnapallikuppam was properly counted and Petitioner cannot seek for fresh poll in respect of Polling Station No.13, Chinnapallikuppam. Case of 1st Respondent is https://hcservices.ecourts.gov.in/hcservices/ 9 that Election Petition has been filed with a vague and indefinite allegation on flimsy grounds and that the Petition is liable to be dismissed. 7. Respondent Nos.2 to 8 remained exparte. 9th Respondent-Veerasami entered appearance, but has not filed any counter. The 10th Respondent-Returning Officer of No.47, Anaicut Assembly Constituency was struck down as per the order made in O.A.No.916/2007 dated 18.08.2007. 8. On the above pleadings, the following Issues were framed. (1) Whether there is compliance of Rules 55(c), 56(c) and 57(c) in Rule 66(A) of the Conduct of Election Rules, 1961 which has materially affected the result of the Returned candidate? (2) Whether the Election Petition discloses material facts as required under Sec.83(1)(a) of R.P.Act, 1951? (3) Whether the averments in the Election Petition discloses the grounds for declaring the election as void under Sec.100(1)(d)(iii) and (iv) of R.P.Act? (4) Whether the Election Commission ordered re- polling in Polling Station No.13, Chinnapallikuppam on 11.5.2006? (5) Whether the Petitioner is entitled to the relief of declaration that the election held on 8.5.2006 pertaining to 47, Anaicut Assembly Constituency is void? 9. Issue Nos. 1 and 4 were re-cast as follows:- (1) Whether there was compliance of Rules 55 https://hcservices.ecourts.gov.in/hcservices/ 10 (C), 56(C) and 57(C) in Rule 66(A) of the Conduct of Election Rules, 1961? (4) Whether re-polling in Polling Station No.13, Chinnapallikuppam was contemplated/declared as contended by the Election Petitioner? 10. The following Additional Issues are framed for consideration:- 1. Whether the votes polled in the EVM of Polling Station No.13, Chinnapallikuppam was mishandled which resulted in erasing of votes polled and consequently showing "0-0-0" against each candidate as contended by the Election Petitioner? 2. Whether there was non-compliance of Rules 55 (C), 56(C) and 57(C) in Rule 66(a) of the Conduct of Election Rules, 1961 which has materially affected the result of the Returned candidate? 3. Whether the interchange of EVM has materially affected the election? 11. Election Petitioner-Varalakshmi examined herself as PW1. The Chief Election Agent for the Petitioner viz., N.T.Shanmugam [former Minister] and the Counting Agents for the Petitioner viz., Prahalathan and A.Parthasarathy were examined as PWs.2 to 4 respectively. Mr.Narayanamoorthy, the then Returning Officer of 47, Anaicut Assembly Constituency was examined as PW5. Exs.P1 to P5 were marked on the side of the Election Petitioner. M.Os. 1 to 5 were also marked. On the side of contesting 1st Respondent, no https://hcservices.ecourts.gov.in/hcservices/ 11 oral evidence was adduced. Exs.R1 to R15 were marked. 12. Issue Nos.2 and 3:- In No.47, Anaicut Assembly Constituency, there were 221 Polling Stations. Election Petitioner-Varalakshmi secured 59167 votes. 1st Respondent- Pandurangan secured 59220 votes and the 1st Respondent got declared elected by "53" votes. There is no dispute on facts. 13. In the counter-affidavit of 1st Respondent, it is alleged that the averments in Paragraphs (9) and (10) of Election Petition are not bonafide, lacks minimum material facts and material particulars to maintain the Election Petition. It is further averred that widen facts and issues leading to material particulars have not been averred by the Election Petitioner and hence non-disclosure of material facts and withholding of material particulars are contrary to the very continuation of the Election Petition. 1st Respondent has further alleged that the Election Petition should contain adequate statement of material facts and there shall be no vague pleas made in the Petition in support of material fact and it is the duty of the Petitioner to plead with full particulars, how the counting was not done in proper manner and how the facts were wrongly accepted infavour of the Returned candidate. Contention of 1st Respondent is that the allegation of irregularities and illegalities in the counting of votes have been subsequently invented as an afterthought and the https://hcservices.ecourts.gov.in/hcservices/ 12 pleadings are not clear and precise on vital aspects and the Election Petition does not disclose the material facts which must be pleaded and failure to plead even a single material fact amounts to disobedience of mandate of Sec.83 (1)(a) of R.P.Act. 14. Section 83 of the Representation of the People Act, 1951 deals with contents of a petition and Rule 94-A of the Conduct of Elections Rules, 1961 deals with Form of affidavit to be filed along with Election Petition. Section 83 of the Act and Rule 94-A of the Conduct of Elections Rules read as under: "83. Contents of petition : (1) An election petition – (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: [Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.] (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. Rules 94-A. Form of affidavit to be filed with election petition:- The affidavit referred to in the proviso to sub-section (1) of section 83 shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in Form 25." https://hcservices.ecourts.gov.in/hcservices/ 13 15. In (1969) 3 SCC 238 [Samant N. Balakrishna and another Vs. George Fernandez and others], the mandatory nature of the provisions contained in Section 83 was dealt with and consequences flowing from any breach of provision were set out. It was held by the Supreme Court that Section 83 is mandatory and requires the election petition to contain first a concise statement of material facts and then requires the fullest possible particulars. The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. The material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. 16. In (2004) 11 SCC 196 [SARDAR HARCHARAN SINGH BRAR VS. SUKH DARSHAN SINGH AND OTHERS], the Supreme Court held as under: "11. The principles have been reiterated recently in H.D. Revanna Vs. G. Puttaswamy Gowda and ors. (1999) 2 SCC 217, V.S. Achuthanandan Vs. https://hcservices.ecourts.gov.in/hcservices/ 14 P.J. Francis and anr. (1999) 3 SCC 737 and Mahendra Pal Vs. Ram Dass Malander and ors. (2000) 1 SCC 261. We are tempted to quote the following passage from the three-Judge Bench decision in Mahendra Pal's case (supra) wherein the learned Chief Justice has summed up the statement of law in the following words: "Section 83(1)(a) of the Act mandates that in order to constitute a cause of action, all material facts, that is, the basic and preliminary facts which the petitioner is bound under the law to substantiate in order to succeed, have to be pleaded in an election petition. Whether in an election petition, a particular fact is material or not and as such required to be pleaded is a question which depends upon the nature of the charge levelled and the facts and circumstances of each case. The distinction between "material facts" and "particulars" has been explained by this Court in a large number of cases and we need not refer to all those decided cases. Facts which are essential to disclose a complete cause of action are material facts and are essentially required to be pleaded. On the other hand "particulars" are details of the case set up by the party and are such pleas which are necessary to amplify, refine or explain material facts. The function of particulars is, thus, to present a full picture of the cause of action to make the opposite party understand the case that has been set up against him and which he is required to meet. The distinction between "material facts" and "material particulars" is indeed important https://hcservices.ecourts.gov.in/hcservices/ 15 because different consequences follow from a deficiency of such facts or particulars in the pleadings. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6 Rule 16 of the Code of Civil Procedure. In the case of a petition suffering from a deficiency of material particulars the court has the discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. Thus, whereas it may be permissible for a party to furnish particulars even after the period of limitation for filing an election petition has expired, with the permission of the court, no material fact unless already pleaded, can be permitted to be introduced, after the expiry of the period of limitation." [See also (1999) 1 SCC 666 [L.R.Shivaramagowda etc. v. T.M.Chandrashekar etc.]; (1999) 3 SCC 737 [V.S.Achuthanandan v. P.J.Francis and another] and (2001) 8 SCC 233 [Hari Shanker Jain v. Sonia Gandhi]. 17. In a catena of decisions, it is well settled that Election Petition must set out all material facts where from inferences vital to the success of the Election Petition and enabling the Court to grant the relief prayed for by the Petitioner can be drawn subject to the averments being substantiated by cogent evidence. Concise and specific pleadings, setting out of material facts and then cogent affirmative evidence being adduced in support of https://hcservices.ecourts.gov.in/hcservices/ 16 such averments are indispensable to the success of the Election Petition. Ofcourse, it is absolutely essential that all basic and primary facts which must be proved at the trial by the parties to establish the existence of cause of action or defence must be averred in the pleadings. 18. In the light of the above well settled principles, let us examine the averments and consider whether the material facts have been set out in the Election Petition. In the Election Petition, Petitioner has alleged that EVM from Polling Station No.13, Chinnapallikuppam was brought in the morning itself and counted. The specific case of Election Petitioner is that the votes pertaining to Polling Station No.8, Gururajapalayam were counted in Table No.10 in Round No.1 by opening the seal of the Electronic Voting Machine and everyone noted the same; but suddenly in the evening a new version was sought to be put that what was counted in the morning was in respect of Polling Station No.13, Chinnapallikuppam and that it has been wrongly taken as Polling Station No.8, Gururajapalayam. 19. In the Petition, the Election Petitioner further averred that the EVM was brought from the additional storage room which according to the Returning Officer [PW5] was due to interchange of EVMs. When the Election Petitioner has alleged that the EVM was brought "not from the strong room", it is for the Returning Officer to explain the same. Therefore, it cannot be said that the https://hcservices.ecourts.gov.in/hcservices/ 17 Election Petitioner has not averred the material facts. The facts which are alleged are material facts which are all the matters for adjudication. It cannot be said that the material facts are not pleaded. Earlier, 1st Respondent-Pandurangan has filed O.A.No.54/2007 to reject the Election Petition filed by the Election Petitioner- Varalakshmi for want of maintainability inasmuch as the material facts and material particulars as warranted in Secs.80, 81, 82, 83, 100(1)(d)(iii) 8(iv) and 101 of R.P.Act have not been pleaded. Election Petitioner has filed a detailed counter-affidavit referring to the material particulars averred in the Election Petition. The said Application O.A.No.54/2007 was later withdrawn and the same was dismissed. There is no force in the contention of 1st Respondent that the averments in the Election Petition does not disclose the material facts and this Issue is answered infavour of the Election Petitioner. 20. Issue No.1 (re-cast); Additional Issues 1 to 3 and Issue No.4 (re-cast):- In order to understand and appreciate the evidence and allegations in the Election Petition, it is necessary to have an understanding of functioning of EVM and as to how it is functioning as different from conventional system of voting. 21. Electronic Voting Machine is a simple and reliable equipment for use in electing a candidate from among many candidates. EVM consists of two Units viz., (i) Control https://hcservices.ecourts.gov.in/hcservices/ 18 Unit; (ii) Balloting Unit joined by a five-meter cable. The Control Unit is with the Presiding Officer or a Polling Officer and the Balloting Unit is placed inside the voting compartment. Each Controlling Unit has a unique I.D. Number which is written on the Control Unit with a permanent marker. Instead of issuing a ballot paper, the Polling Officer in-charge of the Control Unit will press the Ballot button. This will enable the voter to cast his vote by pressing the blue button on the Balloting Unit against the candidate and symbol of his choice. 22. Voting by EVMs is simpler