1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 1ST DAY OF JULY 2011 THE HON'BLE MR. JUSTICE P. JYOTHIMANI Election Petition No. 4 of 2006 Election Petition No. 4 of 2006 R. Natarajan S/o. Rasu residing at Kiliyanallur Post, Mannachanallur Taluk, Tiruchi District. ... Petitioner -VS- 1. M.Rajasekaran S/o.K.Manickam residing at 3/29, Meenakshipuram Street, Thiruparaithurai Post, Srirangam Taluk, Tiruchi District. 2. K.Saraswathi W/o.Ganesan, residing at 5/74, Pallar Street, Kolakkudi Post, Thottiyam Taluk, Tiruchi District. 3. N.Natesan S/o.Nallukutti, residing at 6, Melatheru, Mangalam Post, Musiri Taluk, Tiruchi District. 4. P.Manoharan S/o.Periasamy residing at Alagappatti, Keezhapallam M.Pudupatti Post, Musiri Taluk, Tiruchi District. 5. S.Usha W/o.Selvapathi residing at 110, Anna Nagar Colony, Thottiyam Post and Taluk, Tiruchi District. 6. K.Kannaian S/o.R.Karuppannan, residing at 16, perumal Koil Street, Thottiyam Post & Taluk, https://hcservices.ecourts.gov.in/hcservices/ 2 Tiruchi District. 7. R.Krishnan S/o.M.Ramasamy residing at 1/56, Ambalakaran Street, Karugudi Post, Musiri Taluk, Tiruchi District. 8. P.Senthil Kumar S/o.Periasamy residing at 4-386, Mariamman Koil Street, Ariyanampettai, Alagarai Post, Thottiyam Taluk, Tiruchi District. 9. V.P.Bhaskar S/o.Pandian residing at R.Kombai Village, Nettavelampatti Post, Thuraiyur Taluk, Tiruchi District. 10.The Returning Officer 156, Thottiam Assembly Constituency and Commissioner (Excise) Trichirapalli Trichirappalli. * The Name of the R10 (The Returning Officer) No.156, Thottiam Assembly Constituency in the Election Pettiion is struck off, as per the order of this Hon'ble Court dated 27.07.2007 in O.A. NO. 350 of 2007 in ELP NO. 4 of 2006. ... Respondents This Election Petition praying that this Hon'ble Court be pleased to (a) Declare the election of the Returned candidate, namely, the first respondent herein from NO.156 Thottiam Assembly Constituency (Tamilnadu) in the election held on 08.05.2006 in which results have been declared on 11.05.2006 as void; (b) Ordering scrutiny of all the 396 big covers in Form 13-C containing the postal ballot papers including the declaration and the small cover in Form 13-B with 396 postal ballot paper in form 13 A, B & C and the serial numbers thereon and the attestation in Form 13-A and order re-counting of all 396 postal ballot papers in comparison https://hcservices.ecourts.gov.in/hcservices/ 3 with the register maintained by the Returning Officer along with Form 12 received for such postal ballot papers. (c) Declare the petitioner as duly elected as a member of the Tamilnadu Legislative Assembly from NO.156 Thottiam Assembly Constituency (Tamilnadu) in the election held on 08.05.2006 (in which results have been decalred on 11.05.2006) (d) Directing the first respondent to pay the costs of this election petition. The above Election Petition coming on for hearing before this Court on various dates and finally on 22.06.2011 and upon hearing for the arguments of Mr.T.v.Krishnamachari, counsel for the petitioner and Mr.K.M.Vijayan, Senior Counsel for M/s.La Law, counsel for the 1st respondent and the respondents 2 to 9 are set exparte and upon reading the Election Petition filed by the Election petitioner and counter affidavit of the 1st respondent filed herein and upon perusing the evidence adduced therein, and also the exhibits marked thereto and having 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. The Court made the following order:- This election petition is filed by the petitioner, who was the contestant from No.156, Thottiyam Assembly Constituency in the election for Tamil Nadu Legislative https://hcservices.ecourts.gov.in/hcservices/ 4 Assembly held on 8.5.2006 for which the results have been declared on 11.5.2006, against the respondents 1 to 9, out of whom the first respondent has been declared to have been successfully elected in the election, to: (i)declare the election of the Returned candidate, namely the first respondent herein from No.156 – Thottiam Assembly Constituency (Tamilnadu) in the election held on 8.5.2006 in which results have been declared on 11.5.2006 as void; (ii)order scrutiny of all the 396 big covers in Form 13-C containing the postal ballot papers, including the declaration and the small cover in Form 13-B, with 396 postal ballot papers in Forms 13-A, 13-B & 13-C and the serial numbers thereon and the attestation in Form 13-A and order recounting of all 396 postal ballot papers in comparison with the register maintained by the Returning Officer along with Form 12 received for such postal ballot papers; (iii)declare the petitioner as duly elected as a member of the Tamil Nadu Legislative Assembly from No.156 – Thottiam Assembly Constituency (Tamil Nadu) in the election held on 8.5.2006 (n which results have been declared on 11.5.2006); and https://hcservices.ecourts.gov.in/hcservices/ 5 (iv)to direct the first respondent to pay the casts of this election petition. 2. The brief facts in a nutshell are as under: 2.1. In the election held on 8.5.2006, admittedly, electronic voting machines were used in the polling stations and both the votes cast through electronic voting machines and postal ballot papers were counted on 11.5.2006 at Arignar Anna Government Arts College, Musiri and the first respondent has been declared elected by the Returning Officer with a margin of 53 votes. 2.2. Originally, when the election petition was filed, the Returning Officer was arrayed as tenth respondent and at the instance of the tenth respondent, his name has been struck off as per the order dated 27.7.2007 in O.A.No.350 of 2007 in this election petition. 2.3. As per Form 20 issued by the Returning Officer, the petitioner has polled 43,003 votes, while the first respondent has polled 42,784 votes through electronic voting machines. It is stated that 296 postal ballot votes were polled in favour of the first respondent and 24 postal ballot votes were polled in favour of the petitioner and therefore, by a margin of 53 votes, the first respondent was declared elected. 2.4. The election petition is filed alleging certain irregularities in respect of the counting of postal ballot votes. According to the petitioner, as per Rule 54 and 54- https://hcservices.ecourts.gov.in/hcservices/ 6 A of the Conduct of Election Rules, 1961 (for brevity, "the Rules"), in the process of counting, the Returning Officer shall first deal with the postal ballot papers and thereafter only deal with electronic voting machines. According to him, the procedure contemplated under Rule 54- A(1) to (7) of the Rules was not complied with by the Returning Officer. 2.5. It is his case that, on the date of counting, viz., 11.5.2006, at 8 a.m., the Returning Officer, who was expected to take up the postal ballot papers has not disclosed as to how many postal ballot papers were received and therefore, no particulars were given. The Returning Officer was busy in bringing the electronic voting machines to the twelve counting tables in the hall and therefore, he failed to perform his statutory duty. 2.6. It is stated that the box containing postal ballot papers was opened and the Assistants of the Returning Officer started opening the big covers containing declaration and small cover containing the postal ballot paper. According to the petitioner, on opening the big cover, the Returning Officer should have verified the signature in declaration forms which are in Form 13-A with the signature in Form 13-C and as to whether the serial number is correct and inasmuch as the Returning Officer has not verified the same, the procedure contemplated under Rules 54-A(3) and 54-A(4) of the Rules has not been https://hcservices.ecourts.gov.in/hcservices/ 7 complied with. 2.7. According to the petitioner, the postal ballot papers should be dealt with only by the Returning Officer, while it was his assistants who have dealt with the same and have not verified the declaration by the voter or the signature of the voter in Form 13-A and Form 13-C, and they have not verified and tallied the serial number of the ballot paper in the declaration in Form 13-A and on the cover of Form 13-B. It is stated that they simply opened the covers and took the ballot papers alone, which, according to the petitioner, is a gross violation of Rule 54-A of the Rules, which contemplates a mandatory procedure and it materially affects the election of the returned candidate. 2.8. It is stated that the petitioner and his Election Agents – N.Nedumaran and R.Sekar and Counting Agent – P.Senthil Kumar were present from 7.45 a.m. onwards and according to the petitioner, at 9.30 a.m., one person came and handed over a bunch of 60 postal ballot papers in Form 13-C in big covers and those big covers did not contain any postal seal and the Returning Officer was a silent spectator and has been receiving the small covers given by his assistants and according to him, the 60 big covers which did not contain the postal seal should not have been counted. He has also stated that the Returning Officer has failed to maintain the register as contemplated under https://hcservices.ecourts.gov.in/hcservices/ 8 Chapter X and that is gross violation of Rule 54-A(2) of the Rules. 2.9. It is also his case that in respect of about 25 covers containing postal ballot papers there was no proper signature or declaration and therefore, the petitioner has objected and sought verification of signature in Form 12, which was not done, and according to the petitioner, the postal ballot votes in the small cover in Form 13-B should not have been opened in the absence of any signature or improper signature. It is also his case that in respect of other 20 covers containing postal ballot papers, they were opened by the Counting Assistant of Returning Officer and the serial number from the declaration in Form 13-A and the small cover containing postal ballot votes in Form 13-B did not tally, however the small cover containing postal ballot votes were opened and counted in favour of the first respondent and that is also in violation of Rule 54-A(3) of the Rules and materially affects the election. 2.10. It is his further case that inasmuch as the narrow margin of victory of the first respondent is 53 votes, the improper reception of 65 postal ballot papers by the Returning Officer is in contravention of Rule 54-A(4) of the Rules and also the receipt of 60 postal ballot papers, stated above, which should not have been counted, vitiates the election of the first respondent. 2.11. It is stated that the Returning Officer has not https://hcservices.ecourts.gov.in/hcservices/ 9 announced the results of the postal ballot papers and it was only in the end, after counting was over, while filling Form 20, the Returning Officer has started counting the postal ballot papers and hurriedly filled Form 20 and therefore, according to him, the counting in respect of the postal ballot papers is liable to be rejected. It is stated that the petitioner and his Election Agent – N.Nedumaran have raised objection and made a protest in respect of the improper procedure. 2.12. It is his case that even today all the 396 covers containing postal ballot papers in Forms 13-A, 13-B and 13-C can be summoned and verified for compliance of the Rules, since as per Rule 54-A(12) of the Rules, the postal ballot papers should have been kept in safe custody and according to the petitioner, the Returning Officer is bound to produce Form 12 for the purpose of comparing the signature of the voter with that in the declaration in Form 13-A. 2.13. It is stated that he has also sent a representation by telegram on the night of 11.5.2006 to the Returning Officer, Trichy and the Chief Election Officer, Secretariat, Chennai and also by registered post with acknowledgment due on 12.5.2006 to the Election Officer, the Returning Officer and the Election Commission. It is stated that the petitioner has received the proceedings of the Returning Officer dated 29.5.2006, in which he has https://hcservices.ecourts.gov.in/hcservices/ 10 referred only to the petitioner's letter dated 12.5.2006 and stated to the effect that he has not received any representation at the time of declaration of results, which according to the petitioner is factually incorrect. Therefore, the present petition has been filed. 3.1. In the counter affidavit filed by the returned candidate, viz., the first respondent, it is stated that all the allegations made in the election petition are only against the Returning Officer, who was originally arrayed as the tenth respondent and whose name was struck off as a respondent, and there is no allegation of misconduct or corrupt practice against the first respondent which is mandatory as per Section 83(1) of the Representation of People Act, 1951 (for brevity, "the Act"), which contemplates that in the absence of any corrupt practice having been pleaded and proved against the elected candidate, the election cannot be interfered with. 3.2. It is also stated that even in the application filed by the first respondent in O.A.No.946 of 2007 under Order 6 Rule 16 of the Code of Civil Procedure to reject the election petition, it was held by this Court on 25.9.2007 that, admittedly, the allegations are against the Returning Officer and not against the returned candidate, but the said application was dismissed and the appeal filed by the first respondent before the Supreme Court has been permitted to be withdrawn clarifying that it is open to the https://hcservices.ecourts.gov.in/hcservices/ 11 first respondent to urge all the points before this Court. Therefore, it is submitted that the election petition is not maintainable since there is no misconduct or corrupt practice alleged against the first respondent. 3.3. It is also stated that at no point of time the petitioner has raised any objection before the declaration of result before the Returning Officer and therefore, the question of recounting of votes by the Returning Officer, at this stage, does not arise. 3.4. It is admitted that in respect of the election held on 8.5.2006 counting of votes cast through electronic voting machines and postal ballot papers was done on 11.5.2006 at Arignar Anna Government Arts College, Musiri and the first respondent was declared elected by the Returning Officer, by the first respondent polling 43080 votes and the petitioner polling 43027 votes and therefore, there was a margin of 53 votes. It is also admitted that the first respondent has received 296 postal ballot votes in his favour, while the petitioner has received only 24 postal ballot votes. It is denied that the Returning Officer did not disclose anything to the petitioner or to his Election Agent. It is stated that the counting was done strictly in accordance with the procedure contemplated under the Rules, especially Rule 54-A of the Rules. 3.5. It is stated that when counting of votes began at 8 a.m. on 11.5.2006, the postal ballot papers were first https://hcservices.ecourts.gov.in/hcservices/ 12 counted by the Returning Officer in accordance with the Rules. It is stated that there were totally 396 postal ballot votes received and 23 were rejected as invalid, which has not been referred to by the petitioner since it has been admitted by both the parties. Since in the postal ballot votes the petitioner was polled 24 votes and the first respondent was polled 296 votes, after the polling was completed the same was endorsed in Form 20 and results were declared and the procedure contemplated under the Rules has been duly followed. 3.6. It is also stated that as per Rule 54-A(3) of the Rules, only after verification of the declaration in Form 13-A, the 23 postal ballot votes were declared invalid. It is stated that, after the expiry of time, no postal ballot papers were received and Rule 54-A(2) of the Rules has been complied with by the Returning Officer. It is stated that the counting of postal ballot votes was completed by 8.20 a.m. itself and therefore, the allegation that postal ballot papers were received up to 9.30 a.m. is false. It is also denied that 60 postal ballot papers were received after 9.30 a.m.. It is also denied that 25 covers containing postal ballot papers were without proper signature and declaration. It is also denied that the petitioner has raised any objection regarding the said 25 covers. Similarly, the allegation relating to other 40 covers claimed to have been defective is also denied as https://hcservices.ecourts.gov.in/hcservices/ 13 afterthought and it is stated that none of these objections were raised before the Returning Officer at the time of counting or before declaration of results. 3.7. It is stated that the counting was completed by 3.30 p.m. and declaration was made and before that, at no point of time, the petitioner has raised any objection. It is stated that even as per the petitioner, on 11.5.2006 at 19.16 Hours, which is five hours after the declaration of results, the objections were raised and the same is not maintainable and according to the first respondent, the election petition is vexatious and liable to be dismissed. 4. On the basis of the pleadings, the following issues were framed on 9.11.2010: (i)Whether the election petition is maintainable without any allegation of corrupt practice against the returned candidate as mandated under Section 83(1)(b) of the Representation of the People Act? (ii)Whether the deletion of the tenth respondent by this Court after being impleaded by the petitioner will have any bearing on the election petition? (iii)Whether there is non-compliance of Rules 54-A(4) and 54-A(5) of Conduct of Election Rules, 1961, which has materially affected the result of the Returned candidate? (iv)Whether there is any violation of Rule 54- A(2) of Conduct of Election Rules, 1961, which has materially affected the result of the Returned candidate? https://hcservices.ecourts.gov.in/hcservices/ 14 (v)Whether there is any violation of Rule 54-A (1) to (7) of Conduct of Election Rules, 1961, which has materially affected the result of the Returned candidate? (vi)Whether the petitioner is entitled to the relief of scrutiny of all the 396 big covers in Forms 13-A, 13-B and 13-C along with Form 12 received for such 396 Postal Ballot Papers and order recounting of 396 Postal Ballot papers? (vii)Whether the petitioner is entitled to the relief of declaration that the election held on 8.5.2006 pertaining to 156, Thottiam Assembly Constituency as void? (viii)Whether the petitioner had made valid application for recounting after the completion of counting and before the declaration of results to the returning officer as per Rule 63 of the Conduct of Election Rules, 1961? and (ix)What relief the petitioner is entitled to? 5. The petitioner examined himself as P.W.1, while his Chief Agent – N.Nedumaran was examined as P.W.2 and the Chief Agent of the eighth respondent – R.Sekar was examined as P.W.3 and nine documents were marked on the side of the petitioner as Exx.P1 to P9. The Returning Officer was examined as C.W.1 and he has marked his report as Ex.C1. 6. Since a specific issue was raised about the deletion of the Returning Officer, who was originally arrayed as the tenth respondent in the election petition, https://hcservices.ecourts.gov.in/hcservices/ 15 it has to be decided as to whether such deletion will have any bearing on the election petition, in the context that the allegations of irregularities in counting the postal ballot papers were levelled against the Returning Officer. Since the said issue, which has been framed, relates to the maintainability of the election petition, I propose to deal with the Issue (ii) at the outset. Issue – (ii): 7.1. It is seen that the name of the Returning Officer, who was originally arrayed as tenth respondent, on his application in O.A.No.350 of 2007, was struck off as per the order of this Court dated 27.7.2007 and that order has become final. It is true that in O.A.No.946 of 2007 filed by the first respondent to dismiss the election petition, this Court while dismissing the application, in the order dated 25.9.2007, has observed that the allegations are only against the Returning Officer and not against the returned candidate. 7.2. It is also equally true that there is nothing on record to show that the application filed by the tenth respondent to struck off his name has been objected to by the petitioner. But the question to be considered is whether the non objection of such application filed by the Returning Officer, by the petitioner in the context that the allegation in respect of counting of postal ballot papers is against the Returning Officer, would be fatal to https://hcservices.ecourts.gov.in/hcservices/ 16 the election petition. 7.3. Section 82 of the Act, which is as follows: "Section:82. Parties to the petition.— A petitioner shall join as respondents to his petition— (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition." while narrating about the parties to the petition, only speaks about the contesting parties and therefore, there is no possibility to construe as per the provision of the said Section that the Returning Officer or the Election Commission should also be made as a party necessary for considering the election petition. 7.4. In Jyothi Basu and Others v. Debi Ghosal and others, AIR 1982 SC 983, while observing that in a democracy the right to elect is neither a fundamental right nor a Common Law Right, but a pure and simple statutory right and therefore, the election petition being a statutory proceeding to which neither Common Law nor principles of Equity apply, the statutes and rules made https://hcservices.ecourts.gov.in/hcservices/ 17 thereunder are only applicable, it was held that even by applying the Code of Civil Procedure for amending the petition, the power cannot be exercised for the purpose of striking out a person who is made necessary under the Act. The relevant portion of the said decision is as follows: "11. It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties whose presence may be necessary in order to enable the court “effectually and completely to adjudicate upon and settle all questions involved” may be joined as respondents to the petitions. The question is not whether the Civil Procedure Code applies because it undoubtedly does, but only “as far as may be” and subject to the provisions of the Representation of the People Act, 1951 and the Rules made thereunder. Section 87(1) expressly says so. The question is whether the provisions of the Civil Procedure Code can be invoked to permit that which the Representation of the People Act does not. Quite obviously the provisions of the Code cannot be so invoked. In Mohan Raj v. Suendra Kumar Taparia, [1969] 1 SCR 630 this Court held that the undoubted power of the Court (i.e. the Election Court) to permit an amendment of the petition cannot be used to strike out allegations against a candidate not joined as a respondent so as to save the election petition from dismissal for non- joinder of necessary parties. It was said, “The court can order an amendment and even strike out a party who is not necessary. But https://hcservices.ecourts.gov.in/hcservices/ 18 where the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder (see Section 87). When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as a curative means to save the petition.” Again, in K. Venkateswara Rao v. Bekkam Narasimha Reddi, [1977] 1 SCR 679 it was observed: “With regard to the addition of parties which is possible in the case of a suit under the provisions of Order 1 Rule 10 subject to the added party's right to contend that the suit as against him was barred by limitation when he was impleaded,