Madras High Court
T.Senguttuvan … vs Ashokkumar on 28 May, 2025
Author: P.T. Asha
Bench: P.T. Asha
2025:MHC:1271
E.P.No.9 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 02.09.2024
PRONOUNCED ON : 28.05.2025
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
E.L.P.No.9 of 2021
T.Senguttuvan … Petitioner
Vs
1.Ashokkumar, K.
2.Chandramohan, K.M.
3.Tamilselvan, S.
4.Ameenulla
5.Sasikumar, K.S.
6.Nirandari, V.
7.Ravishankar, R.K.
8.Ruthramani, T.
9.Vijayakumar, R.
10.TVS Gandhi
11.Kumaresan, M
12. Gopinath, M.
13.Sakthi, K.
14.Sivan, C.
19.G.Karpagavalli
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E.P.No.9 of 2021
(Respondents 15 to 18 struck off in ELP.No.9 of 2021 as per
order of this Court dated 11.01.2022 made in O.A.No.672 of 2021
in ELP.No.9 of 2021) ... Respondents
Prayer: Election Petition filed under Sections 80, 80A, 81, 84 r/w
Sections 100, 101, 123, 123(6) & 129 of the Representation of People
Act, 1951 R/w. The conduct of Election Rules, 1961, for the following
reliefs:
i) declare the election of the 1st respondent to No.53, Krishnagiri
Assembly Constituency in the State of Tamil Nadu on 02.05.2021 as
illegal, void and liable to be set aside.
ii) Declare the petitioner herein as duly elected to the No.53,
Krishnagiri Assembly Constituency in State of Tamil Nadu with effect
from 02.05.2021.
iii) Direct the 1st respondent to pay the cost of the petition.
For Petitioner : Mr.Richardson Wilson
For Respondent-1 : Mr.P.V.Ramanjujam, Senior counsel
for Mr.BAravind Srivatsa
ORDER
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E.P.No.9 of 2021
Challenging the election of the 1st respondent as the returned
candidate of No.53, Krishnagiri Assembly Constituency, the petitioner
is before this Court.
2. The petitioner has sought the following reliefs:
i) Declare the election of the 1st respondent to No.53,
Krishnagiri Assembly Constituency in the State of Tamil Nadu
on 02.05.2021 as illegal, void and liable to be set aside.
ii) Declare the petitioner herein as duly elected to the
No.53, Krishnagiri Assembly Constituency in State of Tamil
Nadu with effect from 02.05.2021 and
iii) Direct the 1st respondent to pay the cost of the petition.
3. Petitioner’s case:
(i) It is the case of the petitioner that he belongs to Dravida
Munnetra Kazhagam (hereinafter referred to as “DMK party”) and has
been a resident of Velgalahally Village having been born there. The
petitioner has been active in the political arena since his young age
having been inspired by great leaders like Periyar, Perarignar Anna and
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E.P.No.9 of 2021Dr. Kalaignar M.Karunanidhi. The petitioner, therefore, devoted
himself to achieving the objects and philosophies of the DMK party.
He has been holding various posts in the party and has successfully
contested the last 3 consecutive Tamil Nadu Legislative Elections as
the candidate of the DMK party and served as a Member of the
Legislative Assembly from the year 2006 to April 2021.
(ii) The General Elections to the 16th Tamil Nadu Legislative
Assembly 2021 (hereinafter referred to as “the Elections”) had been
notified on 26.02.2021 by the 15th respondent through a press release of
the same day. The following was the schedule for the Elections:
Commencement of Nominations 12.03.2021
Last Date for filing Nominations 19.03.2021
Date for scrutiny of nominations 20.03.2021
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Last date for withdrawal of candidatures 22.03.2021
Date of poll 06.04.2021
Date of counting and declaration of results 02.05.2021
(iii) The petitioner was fielded as the candidate of the DMK Party
for the 53, Krishnagiri Assembly Constituency on 12.03.2021 and he
was contesting under the symbol ‘Rising Sun” which is the party
symbol. The petitioner has filed his nomination papers on 17.03.2021
and the nomination was accepted after scrutiny on 23.03.2021. The 1st
respondent was fielded by the All India Anna Dravida Munnetra
Kazhagam (hereinafter referred to as “AIADMK Party” as the party’s
candidate. After scrutiny of the nominations, the following list of
candidates qualified to contest the elections and given below are their
names, their party name and symbol:-
SL. NAME OF THE PARTY SYMBOL
NO. CANDIDATE
1 Senguttuvan. T. Dravida Munnetra Rising Sun
Kazhagam
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2 Ashokkumar. K. All India Anna Dravida Two Leaves
Munnetra Kazhagam
3 Chandramohan. K.M. Nationalist Congress Party Clock
4 Tamilselvan.S Bahujan Samaj Party Elephant
5 Ameenulla All India Majlis-E-Ittehadul Kite
Muslimeen
6 Sasikumar. K.S. Anna Puratchi Thaiaivar Jack Fruit
Amma Dravida Munnetra
Kazhagam
7 Nirandari.V. Naam Tamilar Katchi Ganna Kisan
8 Ravishankar. R.K. Makkal Needhi Maiam Battery Torch
9 Ruthramani. T. Desiya Makkal Sakthi Foot Ball
Katchi
10 Vijayakumar. R. Veerath Thiyagi Viswanatha Pestle and
doss Thozhilalarkal Katchi Mortar
11 TVS Gandhi Independent T.V.Remote
12 Kumaresan.M Independent Road Roller
13 Gopinath.M. Independent Dish Antenna
14 Sakthi.K. Independent Computer
15 Sivan.C. Independent Television
(iv) The petitioner’s son S.Tamilselvan was his Chief Election
Agent . The elections to 233 Constituencies including the Krishnagiri
Constituency, hereinafter referred to as “the constituency”, was held on
06.04.2021 and the 1st respondent had been declared as the returned
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candidate by the 18th respondent on 02.05.2021. The 1st respondent had
secured 96,050 votes and the petitioner herein was the next candidate
who secured 95256 votes and the margin of victory was just 794 votes.
The 18th respondent, on 02.05.2021, had officially declared the results.
1. The petitioner seeks to challenge the above election of the 1st
respondent from the Constituency, contending that the election
was illegal and was liable to be declared as void under Section
100(1)(b)(d)(i)(ii)(iii) and (iv) and Section 123(1)(A) of the
Representation of People Act, 1951 (hereinafter referred to as the
“RP Act”). The following are the grounds on which the
petitioner had sought to declare the election of the 1st respondent
as illegal.
2.
(A) SUPPRESSION IN FORM-26 AFFIDAVIT:
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E.P.No.9 of 2021The petitioner would contend that the 1st respondent along with
his three brothers owned a total extent of 2 acres and 8 cents in
S.No.207/2A, Rettiyur Village, Vaniyambadi Taluk, Thirupattur
District which was their ancestral property. In a sale deed dated
25.10.2004 executed by the 1st respondent and his brothers in favour of
one T.Mahendran registered as Document No.3686 of 2004 on the file
of the Sub Registrar Office, Vaniyamadi, the same has been reflected.
The 1st respondent and his brothers had sold an extent of 1 acre 81 cents
(78,977 sq.ft) to various persons through their Power Agent by dividing
it into plots and after the sale, they continued to hold an extent of 23
cents in the aforesaid survey numbers. However, the first respondent
has suppressed this piece of land in the Form-26 Affidavit. The
petitioner owns a 1/4th share in the aforesaid extent. The petitioner
would therefore submit that there was an improper acceptance of the
nomination filed by the 1st respondent which has materially affected the
election of the petitioner.
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(B) DISTRIBUTION OF CASH FOR VOTES:
It is the further contention that the 1st respondent, his Chief
Election Agent and his booth agents along with the AIADMK party
workers with the consent, knowledge, instructions and authorization
and cost of the 1st respondent had distributed a sum of Rs.500/- to the
voters in the Constituency as illegal gratification with the idea of
securing votes in his favour. This distribution had started from the date
of announcement of the poll till the date of poll. This act of the 1 st
respondent and the persons acting under / through him is a clear
violation which falls under Section 123 of the RP Act and the election
of the 1st respondent has to be declared null and void. The petitioner
has set out a tabulated statement containing the details of the persons
who had received the illegal gratification, their addresses along with
details of the persons who had so distributed the amount, place, date
time and person who had witnessed such distribution. Therefore, it is
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E.P.No.9 of 2021his contention that since a corrupt practice had been adopted, the
election of the first respondent has to be set side.
(C) USAGE OF OFFICIAL MACHINERY BY THE 1ST
RESPONDENT TO SECURE VOTES:
The allegation of the petitioner is that one Nagaraj, who was
working as a Supervisor in the Electricity Board and therefore, a
Government Servant, had been canvassing for the 1st respondent by
wearing a shirt printed with the AIADMK party symbol from
05.03.2021 to 25.03.2021 throughout the constituency, including
Kaveripattinam Town, Aalapatti, Palakudi, Madipatti, Vengaleri,
Krishnagiri Town, Kuppam Road, by using the Government car which
was available in his office. This has been witnessed by the petitioner
and his election agent. The use of the petitioner’s Machinery for
campaigning by the 1st respondent and his agents is, once again a
violation of various provisions of the RP Act therefore, the election of
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E.P.No.9 of 2021the 1st respondent has to be set aside.
(D) EXCEEDING THE PERMITTED ELECTION
EXPENDITURE FOR WALL PAINTING SYMBOL
ADVERTISEMENTS APART FROM OTHER VIOLATIONS:
(i) The petitioner would state that the election commission had
fixed a sum of Rs.30,80,000/- as election expenditure for every
candidate in the Constituency. However, on a cursory consideration of
the wall painting advertisements put by the 1st respondent to propagate
his name and his party symbol, the petitioner would estimate an
expenditure of Rs.20,00,600/-. The wall paintings has been done at the
behest and direction of the 1st respondent and has been physically
verified by the petitioner and his agents and party workers. The
petitioner would submit that on a physical verification by the petitioner,
his agents and party workers, they have come to learn that the 1st
respondent and his election agents with his consent, knowledge,
instructions, authorization and cost had painted wall advertisements
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E.P.No.9 of 2021covering nearly 22330 sq.ft throughout the constituency including all
the 44 panchayats and for this alone, a sum of Rs.20,00,600/- was spent
by the 1st respondent which exceeds the total permitted limit for a
candidate.
(ii) The petitioner has provided a tabulated statement detailing the
extent of wall painting including the street name, village and
panchayats as also the expenditure incurred by him. Therefore, the
petitioner would submit that since the excess expenditure attracts
Section 123(6) of RP Act and is a corrupt practice, the election of the
1st respondent is liable to be set aside under Section 100(1)(b) of RP
Act.
(E) VIOLATION COMMITTED BY PLASTERING WALL
POSTERS WITH PARTY SYMBOLS ON THE WALLS OF THE
PUBLIC PROPERTIES APART FROM OTHER VIOLATION:
(i) The contention of the petitioner is that the 1st respondent, his
chief election agent and party workers have plastered the walls of
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E.P.No.9 of 2021Government buildings belonging to Krishnagiri Municipality with
AIADMK party symbols. They have also not spared the walls of
various fly overs which have been listed in detail in paragraph No.13 of
the election petition. This plastering of wall posters is stated to have
taken place between 03.04.2021 and 04.04.2021. The petitioner’s
election agents V.Vengattappan, S.Krishnamoorthy, M.Chandrasekar,
S.Prakash, M.Velumani noticed this and informed the same to the
petitioner and his Chief Election Agent. This act is also a violation of
Model Code of Conduct. Despite the representation of the petitioner
dated 04.04.2021 to the respondents 16 to 18 and the Election
Observer of the Constituency, no action has been taken against the 1st
respondent and his party.
(ii) According to Code 16.3(i) of Model Code of Conduct, all
wall writing, posters/papers or defacement in any other form,
cutout/hoardings, banners, flags etc, on Government property shall be
removed within 24 hours from the announcement of elections by the
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E.P.No.9 of 2021Election Commission. Since the Municipal body, buildings, railways,
flyovers etc. are public properties as contemplated under the Code
16.3(ii) of the Model Code of Conduct, the act of plastering the public
property with posters containing AIADMIK party symbol after
announcement of the election is violative of the Model Code of
Conduct. The petitioner would submit that a minimum of Rs.10 would
have been spent on each posters for plastering the walls and this
expenditure has been suppressed by the 1st respondent though he is
bound to maintain such records as per Section 77 of the RP Act. This
excess expenditure has not been taken note of by the 18 th
respondent/Returning Officer or by the Election Observer.
(F) IMPROPER REJECTION OF POSTAL BALLOT
VOTES:
(i) The petitioner would submit that the counting of the postal
ballots had commenced at 8.00 am in the presence of the Chief Election
Agent and other agents. The Chief Election Agent and the other agents
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E.P.No.9 of 2021of the petitioner had noticed that several postal vote covers were
discarded by the officials without assigning reasons. The petitioner’s
chief Agent, namely S.Tamilselvan had questioned the same. He
requested the 18th respondent to show the results of the postal ballots
for all the candidates and the agents and to reject the same only if there
are any reasonable grounds for rejection. However, the 1st respondent
refused to show the results even after the several requests and rejected
605 covers without assigning any reasons.
(ii) In paragraph 17 of the tabulated statement, the petitioner has
set forth the reasons given for rejecting the votes and the number of
votes rejected under each head. 80 votes which have been rejected
under the heads “others” do not fall within the reasons for rejection as
provided under Rule 54-A(8) of Conduct of Election Rules(hereinafter
referred to as “Election Rules). The petitioner also questioned that the
rejection under various heads was not in compliance of the Rules.
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Therefore, the petitioner would submit that the rejection of 605 postal
votes without reasons and in contravention of Rules 54A(11) and
54A(8) of Conduct of Election Rules had materially affected the
election of the petitioner.
(G)DEFICIENCY AND IRREGULARITIES IN COUNTING
EVM VOTES:
(i) The petitioner would make a complaint about two polling
stations. He would sate that with reference to polling station No.79,
Government High School, Gangaleri with EVM bearing Control Unit
No.BCUAF08025, on 06.04.2021, a mock poll was conducted to test
the EVM machines. However, without resetting the machines, the
polling had commenced and therefore, 50 votes cast in the said EVM
were invalid. The Returning Officer has informed the same on the date
of the counting and assured that this EVM would be kept aside and
counted later through VVPAT. However, contrary to this assurance, it
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E.P.No.9 of 2021was taken up for counting at a later point in time in the absence of the
petitioner and his agents.
(ii) EVM used in polling station 95 bearing Control Unit
No.BCUEF88410 was taken up for counting in Round 9 at Table 1.
However, the same did not work. The Officer-in-charge of the
counting unit was directed by the Returning Officer to keep this control
unit separately and to count the votes at the end. However, in this case
also, the same came to be counted through VVPAT in the absence of
the petitioner and this agents. On 02.05.2021, the petitioner gave a
representation to the 18th respondent and the Election Observer of the
constituency stating that the entire counting process is doubtful and
requesting for recounting of all EVMs and postal votes before the
number of votes secured by each candidate were entered in Form-20 by
the 18th respondent. However, this request was turned down by order in
reference No.Na.Ka.No.972/2020/A dated 02.05.2021 under Rule 63(3)
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of conduct of Election Rules, 1961 stating lack of reasons as a ground
for rejection of request. The petitioner would also set out the procedure
for counting of VVPATs in the place of votes polled in the EVM.
Therefore, the petitioner would submit that since the procedure
contemplated under the Act and Rules by the Returning Officer, the
election of the petitioner has been materially affected. But for this
corrupt practice and these irregularities, the petitioner would have been
the successful candidate. The petitioner had bright chances to win and
his election prospectus has been greatly impaired and hampered by the
corrupt practice adopted by the 1st respondent. Therefore, the petitioner
has come forward with this election petition.
CASE OF THE FIRST RESPONDENT / SUCCESSFUL
CANDIDATE :
4. The first respondent had filed a written statement denying the
various allegations contained in the election petition and would submit
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that the very petition lacks legal merits and has to be dismissed. The
first respondent would raise the preliminary objection that the
allegations made by the petitioner in his election petition is not
supported by any conceivable material evidence and therefore, the
election petition deserves to be dismissed in limine.
5. The 1st respondent would submit that the allegations made by
the petitioner are totally baseless and does not merit consideration.
Therefore, relying upon the judgment of the Hon’ble Supreme Court
reported in (1981) 2 SCC 689 [Aeltemesh Rein Vs. Chandulal
Charakar], the 1st respondent would submit that where a petition is not
supported by sufficient proof, the election petition has to be dismissed
in limine. The 1st respondent would further submit that the election
petition has to be presented within a period of 45 days from the date of
the election of the returned candidate or if there are more than one
candidate and the date of election are different, then the later of the
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dates would prevail. In the instant case, the State assembly election
was conducted on 06.04.2021 and the results were announced on
02.05.2021. However, the petition was filed on 30.06.2021 nearly 63
days after the announcement of the election results and therefore, the
petition is liable to be dismissed.
6. The 1st respondent would submit that there is no statutory
provision for the condonation of delay in filing the election petition and
therefore, the instant election petition was not maintainable, as it was
filed with a delay of 63 days.
7. The 1st respondent would also submit that the election petition
itself has been filed by the petitioner only to avenge his ego and
jealousy considering the fact that the petition has been filed without
substantial proof. He would also rely on the judgment of this Court in
the case of C.Kuppusamy Vs.Chief Election Commissioner
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(W.P.No.12996 of 2002) where it has been held that if it is proved that
the election petition has been filed to appease the ego, and the same
would become infructuous and is liable to be dismissed.
8. The 1st respondent would submit that the election petition is
liable to be dismissed as it does not comply with the provisions of
Section 83(1)(a) of the RP Act. This Section provides that the person
filing an election petition should give a concise statement of the
material facts on which the petitioner relies. However, such a
disclosure has not been made by the petitioner. He would submit that
the allegation that the 1st respondent had overspent the election
expenditure has not been proved and it fails to meet the requirement
under Section 83(1)(a) of the RP Act. He would further state that the
averments of the petition does not qualify as ground of corrupt practice
and satisfy the essential conditions set out in Section 83(1)(b) of RP
Act.
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9. The first respondent has gone on to answer the allegations
contained in the petition as follows :
In answer to the allegation that there is a suppression of facts in
Form-26 affidavit, the 1st respondent would submit that the property is
not under his ownership and that he has alienated the same much
before the date of submission of the nomination Form and this
transaction has also been recorded in the encumbrance certificate.
10. With reference to the allegation of distribution of cash for
votes, the 1st respondent would submit that the petitioner is trying to
prove the same by producing photographs which are not a substantial
proof. The veracity of the photographs and the involvement of the 1st
respondent has to be proved beyond reasonable doubt. The 1st
respondent would further submit that the petitioner has not disclosed
the name of the agent or the full particulars with reference to the
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corrupt practice. Mr.Vinayagam who is alleged to have indulged in the
corrupt practice does not belong to the AIADMK party and there is no
evidence to prove that the said person is a member of the said party.
Further, the petitioner has not made complaint then and there in this
regard.
11. With reference to the allegation of propaganda by the
Government official wearing the symbol of AIADMK party, the
answering respondent would submit that he has no relationship with
the said person and he was not aware about him. However, the alleged
act has taken place much before the date of election and further the
petitioner ought to have reported the same immediately, which
admittedly has not been done. That apart, without prejudice to the
above submission, the answering respondent would add that an
employee of the Tamil Nadu Electricity Board is not a Government
servant and cannot be treated as an official machinery of the state. The
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1st respondent would rely on the judgment reported in (1980) DLT 337
[C.M.Stephen Vs.Atal Behari Vajpayee].
12. As regards the excess expenditure of the wall paintings and
symbol advertisements, the 1st respondent would clarify that the date on
which these acts are stated to have been done was on 03.03.2021
whereas the 1st respondent has filed his nomination only on 12.03.2021.
Therefore, the same cannot be treated as an unlawful practice.
13. The 1st respondent would submit that he is a law abiding
senior citizen of the Country and has been zealously engaged in public
work and constantly works for the benefit of the society at large. He
has entered politics only on account of the great leaders who have led
the party like Periyar, Dr.C.N.Annadurai, Dr.M.G.Ramachandran and
Dr.J.Jayalalitha. He had been elected as a Member of parliament in the
year 2014 General Assembly Elections and had discharged his duties
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with utmost dedication. It is his sheer hard work that has got him
elected. Therefore, he would seek for the dismissal of the election
petition.
ISSUES FRAMED :
14.The following Issues have been framed by this Court in the
above Election Petition :-
“1. Whether the election of the 1 st respondent from the
No.53, Krishnagiri Assembly Constituency to the 16 th Tamil
Nadu Legislative Assembly, 2021 is liable to be declared as
illegal, ab initio void and set aside?
2. Whether the 1st respondent has willfully suppressed his
assets in his nomination form and affidavit thereby materially
affecting the election of the 1 st respondent and rendering his
election liable to be set aside under Section 100(1)(d)(i) & (iv)
of the Representation of People Act, 1951?
3. Whether the 1 st respondent is guilty of having been
committed the corrupt practice under Section 123 of the25/150
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E.P.No.9 of 2021Representation of People Act, 1951, thereby rendering the
election of the 1st respondent liable to be set aside under
Section 100(1)(b) & (d) (ii)?
4. Whether the 1 st respondent is guilty of having been
committed the corrupt practice under Section 123(7) of the
Representation of People Act, 1951, thereby materially
affecting the election of the 1st respondent and rendering it
liable to be set aside under Section 100(1)(b) & (d) (ii) of the
Representation of Peoples Act, 1951 ?
5. Whether the 1 st respondent has exceeded his
permitted election expenditure and thus violated Rule 90 of the
Code of Conduct Rules, 1961 r/w Section 77 of the
Representation of Peoples Act, 1951, thus committing a
corrupt practice under Section 123(6) rendering his election
liable to be set aside under Section 100(1)(b) & (d) (ii), (iv) of
the Representation of Peoples Act, 1951 ?
6. Whether the 1st respondent, and with his knowledge,
consent and direction, his agents and other party workers
have plastered the walls of Government buildings and public
properties with posters thereby violating the Model Code of
Conduct, thus rendering the election of the 1 st respondent
liable to be set aside under Section 100(1)(d)(iv) of the26/150
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7. Whether the Returning Officer of the No.53,
Krishnagiri Constituency committed irregularities and
illegalities by improperly rejecting the postal ballot votes and
in counting the votes recorded in the EVMs, thereby materially
affecting the election of the 1 st respondent rendering the
election liable to be set aside under Section 100(1)(d)(iii) of
the Representation of the Peoples Act, 1951 ?
8. Whether the present election petition is barred by
limitation and latches?
9. Whether the present election petition is compliant of
Section 81 of the Representation of People’s Act 1951 ?
10. Whether the present petition contains sufficient cause
of action for this Hon’ble Court to take cognizance and try the
same?
11. Whether the Petitioner herein should be declared as
duly elected to the No.53-Krishnagiri Assembly Constituency in
Tamil Nadu w.e.f. 02.05.2021?
12. Whether the Petitioner is entitled to costs?
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13. To what other reliefs is the petitioner entitled to ?”
TRIAL :
15. On the side of the petitioner (plaintiff), the petitioner has been
examined himself as P.W.1 and 17 documents have been marked on his
side. The first respondent examined himself as R.W.1 and no
documents have been marked on his side. C.W1 to C.W.4 have been
examined as Court witnesses pursuant to the summons taken out by the
petitioner and Exts.C1 to C17 has been marked through these
witnesses. On the side of the respondents, the 1st respondent has been
examined as a witness and no documents have been marked on their
side.
SUBMISSIONS :
16. Although extensive oral arguments had been adduced on both
sides, they have submitted exhaustive written arguments and therefore,
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this Court is relying upon these written submissions and extracting the
submissions made by either side, in a concise manner.
Written submissions of the petitioner:
17. The petitioner has submitted his written submissions on the
grounds upon which the election of the 1st respondent is sought to be
set aside.
(i) Suppression in Form -26 Affidavit by the 1st respondent:
This is covered under issue No.2 of the issues framed by this
Court. The petitioner would contend that the 1st respondent and his 3
brothers had owned an extent of 2 acres 8 cents in S.No.207/2A,
Rettiyur Street, Vaniyambadi Taluk, Thirupttur District, Vaniyambadi
which is the property they had inherited from their father,
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E.P.No.9 of 2021Krishnamoorthy. The 1st respondent and his brothers had formed a
layout and sold several portions of the property as plots. To prove the
sales, the petitioner has filed Ex.P5-Encumbrance Certificate. The
learned counsel would submit that out of the extent of 2.08 acres, 1 56
acres was sold leaving behind the extent of 0.52 acres of land.
However, the patta which has been marked as P4 still shows an extent
of 0.36.35 hectares , i.e 0.89 acres which continues to remain in the
name of Krishnamoorthy Gounder and others. The learned counsel
would submit that the 1st respondent has not denied this issue in his
counter statement, except for stating that in the computer patta, the
petitioner’s name does not feature and the encumbrance certificate only
goes to show that the property has been sold out. This fact is also
admitted by the 1st respondent in his cross examination as R.W1. The
learned counsel would further submit that the failure to submit an
explanation for the aforesaid allegation in the counter statement is
sought to be addressed through arguments where a new defense is
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E.P.No.9 of 2021raised that the extent of 0.89 acres constitutes the OSR lands which
have been gifted when the layout was formed. An alternate argument
was also made for the first time by the 1st respondent that even if there
is some land available, this would not in any manner materially affect
the election. Such a statement, according to the petitioner is fallacious
in as much as Section 100 (1) (d) of the RP Act does not contemplate
an investigation into the intent or mens rea like a criminal offence.
Suffice it to say that if any of the 4 grounds of this section is attracted,
the intent of the candidate pales into insignificance. The candidate has
violated the mandatory requirements of disclosure of assets. This is
covered by a judgment of the Hon’ble Supreme Court in the case of
Union of India Vs. Association for Democratic Reforms and Another
[2002] 5 SCC 294. Sections 33-A and 33-B of the R.P. Act require
the candidate to mandatorily disclose such information as is sought
from him by the Act and Rules. Rule 4A of the Conduct of Election
Rules, hereinafter referred to as the “CE Rules”, set outs the Form of
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E.P.No.9 of 2021Affidavit that is to be filed by the candidate at the time of filing his
nomination paper. This is an affidavit sworn by the candidate before a
Magistrate of the first class or a Notary in Form 26. Clause 7 of Form
26 requires every candidate to declare his movable and immovable
assets, assets of his spouse and dependent children. Therefore, it is the
contention of the petitioner that by not including the aforesaid asset in
the Form 26, the petitioner has violated the provisions of Section
100(1)(d)(iv) of the R.P. Act and it is fatal to the election which cannot
be cured. Therefore, according to the petitioner, issue No.2 has to be
answered in favour of the petitioner. He would rely upon the following
judgments as well :-
i. 2015 (3) SCC 467 – Krishnamurthy Vs Sivakumar & Others
(paragraphs 62 to 65, 81 & 86)
ii. 1996 (2) SCC 752 – Common Cause (A Regd. Society) Vs.
Union of India & Others (paragraphs 23 & 26)
iii. AIR 2014 SC 2069 – Kisan Shankar Kathore Vs Arun
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E.P.No.9 of 2021Dattatraya Sawant & Others (paragraphs 31, 32, 33, 37, 38,
39, 40, 41 & 43)
iv. 2012 (3) SCC 314 – Mangani Lal Mandal Vs Bishnu Deo
Bhandari (paragraphs 9 to 11)
(ii) Distribution of cash for votes which is covered under Issue No.3
The petitioner would contend that the 1st respondent and under
his instructions, his agents and party workers had distributed cash of
Rs.500/- to each of the voters of the constituency in exchange for their
votes. To prove the above allegation, apart from the petitioner’s
evidence as P.W1, two other eye witnesses have been examined. P.W3
– Chandersekar would depose that he has himself seen one Vinayakam
who is the spokesperson of the AIADMK party and one Arumugam
distributing Rs.500/- along with a pamphlet to a voter, Akbar asking
him to vote for the 1st respondent. P.W3 would contend that that he had
taken a photo of the same and this photograph is marked as Ex.P15.
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The evidence of P.W3 has been extracted in the written arguments.
The next witness examined in this regard is P.W4-Velumani, who had
deposed that on 04.04.2021, he had seen Vinayakam canvassing for the
1st respondent at Govindapuram Street where he observed Vinayakam
placing a Rs.500/- note on a pamphlet bearing the AIADMK symbol to
a voter, Yaraf requesting to vote for the 1st respondent. P.W4’s
evidence in this regard has also been extracted. It is the contention of
the petitioner that 1st respondent has raised the defense that the full
particulars of the alleged corrupt practice have not been furnished and
that apart, there is nothing to show that Vinayakam was a member of
the AIADMK party. Therefore, what is to be considered is whether
Vinayakam is a Member of the AIADMK party or not. The 1st
respondent has attempted to brush aside the statement by contending
that the said Vinayagam is not a Member of the AIADMK party. To
counter the same, the learned counsel for the petitioner would invite the
attention of this Court to the evidence of CW4-Vinayakam wherein he
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has admitted that during the relevant period namely the Election 2021,
he was very much a Member of the AIADMK Party. In his chief
examination, he had admitted the photograph. This admission was later
sought to be retracted by contending that the entire photograph was
orchestrated by a DMK Town Secretary. In the cross examination, the
witness has admitted that he had shifted from the AIADMK party to
DMK party. However, the learned counsel for the petitioner would
submit that in response to another question, the witness has clearly
answered that he had shifted from the AIADMK party to DMK party
only after Ex.P15 was taken. Therefore, the defense that Vinayakam
was not a member of the AIADMK at the relevant point in time fails.
The learned counsel for the 1st respondent, in oral arguments, had
contended that Section 65-B certificate given by P.W3 is illegal, since
the certificate ought to have been given by Bhavani Studio which had
printed the photograph. The said contention is totally misconceived as
the responsibility under Section 65-B is fastened on the person who is
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producing the electronic evidence to certify that the electronic output is
an accurate reproduction. Therefore, the person taking the photograph
is competent to produce the Section 65B certificate. The learned
counsel would further contend that bribery of voters is a serious
election offence under Section 123-1(A) of the R.P.Act and such
corrupt practice attracts the provisions of Section 100(1)(d)(ii) of the
R.P.Act. Therefore, this corrupt practice materially affects the
election and issue No.3 is also to be answered in favour of the
petitioner. He would rely upon the judgment reported in 2017
SCCOnline Mad 1977 (paragraphs 14, 20, 21, 23, 28 & 29)
(iii) Use of official machinery which is covered under Issue No.4:
The petitioner’s contention is that the 1st respondent had secured
the assistance of one Nagaraj, a Supervisor of the Tamil Nadu
Electricity Board (now TANGEDCO) who has canvassed for the 1st
respondent across the constituency between 05.03.2021 to 25.03.2021
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E.P.No.9 of 2021by wearing a shirt which had the AIADMK party symbol printed on it.
C.W3-Senthil Kumar has been examined as Court witness No.3 to
substantiate the above contention. He had deposed that he had seen the
said Nagarajan canvassing for the 1st respondent on 24.03.2021 at
Aalapatti within the Krishnagiri Assembly Constituency while wearing
AIAMK party symbol. The defense is that the said Nagaraj is not a
Government servant within the meaning of Section 123(7) of the R.P.
Act and the 1st respondent has not asked him to canvass for votes.
Therefore, the petitioner would submit that once there is an admission,
there was no necessity to prove the same. The defense that the said
Nagaraj is not a Government servant is false. According to the
petitioner, the TANGEDCO is fully owned by the State Government.
The argument of the learned senior counsel for the 1st respondent is that
Nagaraj was not an official appointed or deputed by the Election
Commission of India in connection with the conduct of the elections
and therefore, Section 123(7) of the R.P.Act would not be attracted.
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E.P.No.9 of 2021The learned counsel for the petitioner, in this regard, would submit that
Section 123(7) of the R.P.Act does not envisage the appointment of a
specific individual and only contemplates a class of persons who are in
the service of the local authority, university, government Company or
institution or concern or undertaking appointed or deputed by the
Election Commission in connection with the conduct of elections. The
phrase “appointed” or “deputed” is only attached to the last category
i.e., undertakings. The Court has to consider all the facts to determine
as to whether TNEB/TANGEDCO can be involved in conducting
elections since electricity is an essential service for the conduct of
elections. Therefore, the involvement of one of the board members
squarely falls within the embargo of Section 123(7) of the R.P.Act.
Therefore, he would submit that the issue No.4 has to be answered in
favour of the petitioner.
(iv) Exceeding the permitted maximum expenditure:
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E.P.No.9 of 2021The petitioner’s contention is that the maximum permitted
expenditure is Rs.30,80,000/- per candidate. The petitioner in his
pleadings has contended that the 1st respondent has spent over a sum of
Rs.20,00,600/-for the wall painting advertisements alone. The wall
paintings had been physically verified by the petitioner, his agents and
his party workers. P.Ws.2, 5 and 6 have been examined in order to
prove the above statement. Exs.P16 and 17 series have been marked
through them. In their defense, the 1st respondent has stated that the
document submitted by the petitioner to prove the above allegation is
prior in point of time from the date of nomination. However, the
petitioner would submit that there is no specific denial either
specifically or generally to the allegations made. The petitioner would
submit that the statement of expenditure has not been denied by the 1st
respondent. Therefore, taking note of the fact that the 1st respondent
has filed expenses to the tune of Rs.15,06,058/- to which, when
Rs.20,00,600/- is added, it would be crystal clear that the 1st respondent
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E.P.No.9 of 2021had exceeded the election expenditure. Therefore, this is violative of
Section 77(3) of the RP Act and Rule 90(b) of the C.E. Rules. The
failure to adhere to the maximum expenditure limit is also a corrupt
practice under Section 123(6) of the R.P. Act which reads as follows:-
(6)The incurring or authorizing of expenditure in
contravention of section 77.
Therefore, he would pray that the issue No.5 should also be answered
in favour of the petitioner.
(v) Painting / Plastering Government Buildings which is covered
under Issue No.6:
The petitioner’s contention is that the 1st respondent had painted
and plastered the walls of the Government buildings belonging to the
Krishnagiri Municipality with election advertisements and party
symbols. It is the contention of the petitioner that this contention has
not been specifically denied by the first respondent. Therefore, the
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E.P.No.9 of 2021issue No.6 has to be answered in favour of the petitioner. The learned
counsel for the petitioner would rely upon the following judgments :
i. 1996 (2) SCC 752 – Common Cause (A Regd. Society) Vs
Union of India & Others (paragraphs 23 & 46)
ii. 1999 (1) SCC 666 – L.R.Shivaramagowda & Others Vs
T.M.Chandrashekar (dead) by LRs & others (paragraph 19)
(vi) Improper rejection of postal ballots which is covered under
Issue No.7:
The petitioner would contend that the Returning Officer and other
counting officers had not followed the procedures prescribed under the
R.P.Act for counting and rejecting the postal ballots. The Returning
Officer had rejected 605 postal ballots. However, while counting and
rejecting the same, the petitioners were not informed about the reasons
for the rejection. The petitioner would further contend that at around
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E.P.No.9 of 20211.00 p.m., at the end of the counting of postal ballots neither the tally of
rejected votes nor the reasons for rejection were provided to the
petitioner and this information was handed over only around 9.30 p.m.
At that time, they were informed that 605 votes were rejected out of the
total 3318 postal ballots. The petitioner has made a representation
under Ex.P10 dated 02.05.2021 requesting the Returning Officer to re-
count the votes. It is the contention of the petitioner that only
thereafter, Ex.P.11 dated 02.05.2021 came to be issued by the
Returning Officer and the reasons for the rejection have been issued.
The petitioner has also contended that although Ex.P.11 was the
document that was served on the petitioner, however when the same
document was subpoenaed from the Returning Officer, and produced as
Ex.C3, the total tally had changed. The image of the tabular column
had been altered and the number of votes had been changed by hand.
He would further submit that, as per the requirement of the law, each
postal ballot was to be dealt with separately and the reasons for
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rejection of the postal ballot should be clearly written on the ballot. It
is the contention of the petitioner that Rule 54A of the C.E. Rules had
not been followed in the case of postal ballots. The main contention in
this regard on the side of the petitioner is that all the valid ballot papers
and the rejected ballot papers have to be separately bundled and kept
together in a packet which was sealed with the seals of the Returning
Officer and of such of the candidates, their election agent or counting
agents who shall also affix their seals thereon. According to the
petitioner, such a procedure has not been adopted. It is also their
contention that though the signatures of their two counting agents had
been obtained in the final tally and the result sheet, the calculation
sheet or the note sheet where the reasons have been scribbled by hand
has not been furnished to the Agents and neither are these reasons
recorded on the postal ballots. C.W.2-Returning Officer has deposed
that she does not remember who has written or to whom it was
furnished. The counsel for the petitioner would also submit that C.W.2
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had falsely deposed before this Court. On the one hand she would state
that the reasons have been explained to the agents and on the other
hand, she admitted that the reasons were written by hand by the
Assistant Returning officer on a white sheet titled “abstract” and no
signatures had been obtained by them. The CCTV footage of the postal
ballot marked as Ex.C8 shows the following illegalities committed by
the AROs. The reason for rejection was neither communicated nor
ballots shown to the candidates or their agents. No ARO can be seen
writing any reasons on the ballots. Counting has been done in the
absence of the agents. The petitioner has set out the errors committed
while viewing the CCTV footage in a tabulated statement in his written
arguments. The petitioner had made an application for recounting the
entire votes including the postal votes under Rule 63 of the C.E Rules
which was rejected by the Returning Officer under Ex.P13. The
petitioner would also rely upon the Handbook for Returning Officers,
2019 to submit that where the victory of margin is less than the total
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number of postal ballots received then there should be a mandatory re-
verification of all postal ballots. The petitioner had taken out an
application in O.A.No.27 of 2024 for re-counting. This application
was allowed by this Court. However, on appeal, the Hon’ble Supreme
Court had set aside the order in O.A.No.27 of 2024 dated 25.03.2024
and remanded the matter back for fresh consideration. Therefore, he
would submit that unless and until the postal ballots are verified, the
petitioner’s contention that the postal ballots have been rejected
illegally, cannot be proved. With reference to this issue, the petitioner
has relied upon the following judgments :
i. 1996 (4) SCC 53 – Vikhesa Sema Vs Adhishe Sema (paragraphs
6, 14 to 16)
ii. 2001 (6) SCC 558 – P.H. Pujar Vs Dr.Kanthi Rajashekhar
Kidiyappa & Others (paragraphs 4, 9 & 10)
iii. 2014 (5) SCC 312 – Arikala Narasa Reddy vs Venkataram
Reddy Reddygari & Another (paragraphs 13, 15 & 41)
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(vii) Illegalities committed in counting EVMs which is covered
under Issue No.7:
The petitioner would submit that the illegalities had been
committed in the counting of two EVMs. The two allegations are as
follows:
(i) In the polling station No.79, Government High Court,
Gangleri, in respect of the EVM bearing Control Unit Number
BCUAF08025, the mock poll data had not been erased. Originally, the
Returning Officer had announced that since the data of mock poll had
not been deleted, the EVM would be kept aside. However, later the
Returning Officer had announced that votes in the said EVM was
counted through its VVPAT in the absence of the petitioner and his
agents.
(ii) In Polling Station 95, the EVM bearing control unit
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E.P.No.9 of 2021No.BCUEF88419, when taken up for counting during Round 9 at
Table-1, it did not work and showed an error. The officer in-charge
was asked to keep the Control Unit separately. However, the said
EVM was counted using its VVPAT once again, in the absence of the
petitioner and his agent. When the EVM at Polling Station No.79 was
checked before this Court, the total votes displayed as 657 which
included 50 mock poles. Likewise in the case of EVM of PS 95, the
machine initially showed a “Data Digit Error” and when the machine
was restarted, it showed the number of votes recorded as 716.
According to the petitioner, there was no necessity to count the votes
through VVPAT. The petitioner would question the procedure adopted
by the Returning Officer in verifying the VVPAT counting, as it was
contrary to the provisions of Rule 5D of the C.E Rules. He would
submit that the Returning Officer had not obtained permission from the
election commission for either refusing to delete the mock poll or for
counting the votes through VVPAT. Therefore, he would submit that
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the procedures followed at Polling station numbers 79 and 95 are
totally flawed and materially affect the result of the election and
therfore, Issue No.7 should be answered in favour of the petitioner.
(iii) As regards the other issues, the petitioner would submit that
with reference to the limitation, there was no arguments adduced on the
side of the 1st respondent. It is admitted that the election petition was
filed within the extended period of limitation granted by the Hon’ble
Supreme Court due to the Covid Pandemic. Therefore, he would
submit that the issue Nos. 8 to 10 has to be answered in favour of the
petitioner.
(iv) The petitioner would also rely upon the following judgments:
i. 2013 (9) SCC 659 – S.Subramanian Balaji Vs State of
Tamil Nadu and others, for the proposition that the
instructions issued by the Election Commission of India
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E.P.No.9 of 2021has the force of law traceable to Article 324 of the
Constitution of India.
ii. 1997 SCCOnline P&H 766 – Harbans Singh Jalal Vs
Union of India – Model Code of Conduct.
iii. 1996 (1) SCC 169 – Manohar Joshi Vs Nitin Bhaurao
Patil & Another;
iv. 1980 (2) SCC 197 – Shiva Chand Vs Ujagar Singh and
others.
The judgments in (ii) and (iv) have been submitted in
support of their argument that in case of corrupt practices,
the election of a returned candidate has to be set aside.
v. In support of his arguments regarding the credibility of
witnesses, the learned counsel for the petitioner would rely
upon the judgment reported in 1957 SCCOnline MP 83-
vi. As regards the argument that a party cannot go beyond the
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E.P.No.9 of 2021pleadings particularly with reference to Issue Nos.1 and 2,
the counsel for the petitioner would rely upon :
i. 2018 (11) SC 652 – Sri Shivaji Balaram Haibatti Vs
Sri Avinash Maruthi Pawar;
ii. 2015 (9) SCC 755 – Nandkishore Lalbhai Mehta Vs
New Era Fabrics Pvt Ltd. & Others;and
iii. 2008 (17) SCC 491 – Bachhaj Nahar Vs Nilima
Mandal & Others.
Written submissions filed on behalf of the 1st respondent:
18.1 The 1st respondent, who is the contesting respondent, has
submitted the following written submissions issue wise and their
arguments are set out herein below in the same fashion as in their
written arguments / submissions.
A) Issue No.2 : Whether there is a wilful suppression of assets:
(i) The answer to this allegation is that there has been no wilful
suppression by the 1st respondent. He would contend that the election
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E.P.No.9 of 2021petitioner has solely relied upon the encumbrance certificate-Ex.P5 and
Ex.P4-patta dated 25.06.2021 to contend that there is a suppression.
The 1st respondent would contend that Ex.P4 would clearly show that
the patta stands in the name of the 1st respondent’s father and not in his
name. In Ex.P5- Encumbrance certificate, there are 73 entries regarding
Survey No.207/2A for the period between 01.01.1990 to 17.06.2021.
The Encumbrance certificate would clearly describe a 15 feet wide
pathway being provided to the various purchasers. The layout plan
would also indicate these pathways. This area occupied by the passage
in the approved layout as also the OSR vests totally with the local body
and the plot owners. These lands have not been taken into
consideration and the petitioner has simply contended that 23 cents
continue to remain in the hands of the petitioner. The execution of the
Gift Deed to the local body is only a Ministerial Act. Therefore, the 1st
respondent would submit that having sold the property to over 73
purchasers and the layout plan clearly shows the existence of the
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pathway, the petitioner and his family members no longer have any
right over this property. The object of the affidavit in Form-26 is only
to provide information to the voters. The Hon’ble Supreme Court has
clearly stated that the non disclosure should be of a substantial nature
and that trivial and inconsequential information cannot be treated as
suppression of facts. The 1st respondent would submit no voter has
been manipulated on account of this affidavit in Form-26.
(ii) The 1st respondent would contend that from the language in
which the issue is couched, it is clear that the suppression has to be
wilful. In the instant case, the suppression is neither wilful nor wanton.
In support of this statement, he would place reliance upon some
portions of the cross examination of P.W1 as also R.W1. In answer to
a question put to P.W1 as to how the petitioner has come to the
conclusion that 23 cents of land is still available in Survey No.207/2A
and standing in the name of the 1st respondent, the answer given was
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that the petitioner had filed Encumbrance Certificate and the patta
standing in the name of the 1st respondent’s father. The witness has
admitted that the 1st respondent’s name is not found in Ext.P4, patta, but
however his father, Krishnamurthy Gounder’s name is mentioned. The
witness further admitted that there no documents to show that 23 cents
in Survey No.207/2A remains in the name of the 1st respondent and
ultimately, stated that it is jointly enjoyed by the petitioner and his
brothers. R.W1, during his cross examination, has admitted that the
extent of 2 acres and 8 cents was his ancestral properties and that the
same stood in the name of his father. R.W1 has categorically denied
the allegation that an extent of 23 cents still remains with the family.
The first respondent would rely upon the judgment reported in 2024
SCCOnline 519 – Karikho Kri Vs Nuney Tayang and another
(Paragraphs 40, 41, 44 & 45) in support of his arguments.
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B) Issue No.3: Whether the 1st respondent is guilty of having
committed the corrupt practice under Section 123 of the R.P.Act
(i) With reference to this allegation regarding the distribution of
cash for votes, it is the contention of the 1st respondent that the election
petitioner has adopted mutually destructive pleas in his petition. While
at one place, the election petitioner has alleged that the 1st respondent,
his election agent, his booth agents along with AIADMK workers
acting under the consent, knowledge, instructions and authorization and
cost of the 1st respondent have distributed cash of Rs.500, however, in
the very same paragraph (Para No.9), the said allegation has been given
a go-by and the petitioner would state that the election agent had
distributed the cash. However, the name of the election agent has not
been mentioned. The tabular column set out in paragraph 10 of the
election petition does not clearly state that the persons to whom money
was distributed, are voters of the Krishnagiri Constituency. The 1st
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respondent would further submit that evidence has been created by the
election petitioner by examining obliging / interested witnesses who
have deposed falsely.
(ii) It is also the contention of the 1st respondent that the election
petitioner has not shown how Section 123 of the RP Act is attracted.
The 1st respondent would highlight the admissions, the falsity in the
petition as well as the deposition of the witnesses. He has also pointed
out the admissions made by the witnesses that they have not lodged any
complaint with the Returning Officer about the distribution of cash.
The witness has also admitted that 8 persons who are alleged to have
received the illegal gratification have not been shown in the list. The
first respondent has also highlighted the contradictions in the evidence
of P.Ws 1, 2, 3 and 4 as also the 3rd parties who have been examined as
C.W2, C.W3 and C.W4. The 1st respondent would submit that Ex.P15
photograph which has been marked to show the distribution of cash
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cannot be believed as it has not been proved in the manner known to
law. Therefore, in the absence of proof of corrupt practice, issue no.3
has to be answered in favour of the 1st respondent.
C) Issue No.4 : Government employees engaged in the election
campaigning for the 1st respondent
It is the case of the election petitioner that one Nagaraj, who is an
Electricity Board Supervisor, has canvassed for the 1st respondent and
therefore, the 1st respondent is guilty of misusing the official
machinery. In this regard, he would set out the contradictions in the
evidence of P.Ws 1 and 2 as also C.W3. The witnesses have not stated
that the said Nagaraj is a registered voter of Krishnagiri Constituency.
In fact, in answer to a question regarding whether Nagaraj is a
registered voter of the Uthangarai Constituency, the reply of P.W1 was
that his wife stood for election at Uthangarai and Nagaraj is a voter of
the Krishnagiri Constituency. The second witness on the petitioner side
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had undertaken to produce proof that Nagaraj was a registered voter of
the Krishnagiri Constituency but however the proof was not produced.
C.W3 who has been examined to prove the contention that Nagaraj had
canvassed has admitted that he belongs to an affiliated Trade Union of
the DMK Party to which party the Election Petitioner also belongs.
The witnesses have also contradicted each other with reference to the
vehicle alleged to have been used by the said Nagaraj. P.W2 would
state that he never saw the vehicle whereas the election petitioner says
that it is a Government car. C.W3 would also state that there was no
Government vehicle. During the oral argument, a plea was taken that
an employee of TANGEDCO is not a Government employee.
However, in the written arguments, this plea has not been reiterated.
D) Issue No.5 : Excess expenditure
The election petitioner has alleged that the 1st respondent had
exceeded the expenditure limit fixed for candidates in the Tamil Nadu
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State Assembly Constituency. P6 is the statement of expenditure filed
by the 1st respondent. It is the contention of the 1st respondent that as
per Rule 18.17 of the Hand Book for the Returning Officer and Hand
Book for the candidates, the candidates are required to maintain the
daily expenditure and same is to be checked by the expenditure
observer/ shadow observer. However, the election petitioner has not
contemporaneously made any complaint to the Election official. The
expenses submitted by the election petitioner had been accepted after
scrutiny by the election officials. With regard to the wall paintings,
photographs had been produced and the 1st respondent would submit
that these photographs are inadmissible in as much as the certificate
dated 04.09.2023 does not comply with the requirements of Section 65-
B of the Indian Evidence Act, 1872. The 15-photographs marked as
Ex.P16, according to the 1st respondent are all fabricated as there are
interpolations. P.W5 through whom Ex.P16 photographs had been
marked would state that he has filed a report to the Returning Officer
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and that report had been filed into Court. However, there is no such
document filed into Court and this would clearly prove that the
petitioner is setting up a false case. Although the witness would state
that he had got an estimate for sum of Rs.20,00,600 from the painter,
Surya, he would however conceded that no written estimate was
received from the said Surya. The witness was not able to recollect as
to when and how the extent of 22,330 sq.ft. was measured. Once again,
the 1st respondent has pointed out that no complaint about the above has
been given to the Returning Officer. P.W2 has admitted that he has no
personal knowledge about the painting done in the other villages except
Usaripatti Village. Once again, there is no written complaint to the
Returning Officer. The witness P.W5 would submit that he has in all
taken 15 photographs which are marked as Ex.P16 Series. The 1st
respondent would contend that there is absolutely no materials
submitted with reference to the wall paintings put up on the
government buildings and the paintings put up on the flyovers.
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E) Issue No.6: Painting on public properties
The 1st respondent would submit that the contents of Ex.P7 are
rather vague and do not relate to wall posters on public properties
alleged to have been put up by the 1st respondent. P.Ws.1, 2 and 5 have
spoken about the same and the relevant response in cross examination
has been extracted. The 1st respondent would submit that a perusal of
the above would clearly show that there is no material to indicate as to
which public building the wall poster has been put up and there is no
document to prove this allegation.
F) Issue No.7: Rejection of Ballots
The 1st respondent would submit that Ex.C2 which has been filed
through the Returning Officer would clearly show the round wise tally
and the final tally of postal ballot votes in Krishnagiri Constituency.
Ex.C2 is the document recording the tally of votes polled by postal
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ballots. In this tabulated statement, there is a table for each round and
the tally has been typed on the reverse. The counting agents of the
petitioner and the 1st respondent have also signed in the serial numbers
1 and 3. Ex.C3 is the representation of the Election Petitioner stating
that 700 votes which are invalid votes have to be counted. Ex.C6 is a
printed format with a blank pre-prepared sheet by the election
petitioner. This according to the 1st respondent would show that it was
made for the purpose of the case. Ex.P10 is the pre-prepared format by
the Election Commission. The blanks are filled by hand and a different
version is given that 605 postal votes have been wrongly rejected. It is
the argument of the 1st respondent that a perusal of Exs.C2 to C6 would
clearly show how the counting process of postal ballots had been done
in accordance with the law. A perusal of Exs. C7 and C8- CCTV
footages would also clearly display how the Assistant Returning
Officer has segregated the valid and invalid votes and showed each
ballot paper before the same was either counted or rejected. Therefore,
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the allegation that there has been improper rejection of postal ballots is
totally false. The relevant portions of the evidence of P.Ws.1 and 2,
CW2 and R.W1 have also been set out. The 1st respondent would
contend that 605 postal ballots have been rightly rejected and after
having participated in its counting, the petitioner is now seeking a
roving enquiry. The election petitioner had pointed out that 80 postal
ballot papers have been rejected on the ground that there was no
signature or attestation. The Returning Officer has explained that these
ballot papers have come from other constituencies without signature or
attestation and since this contingency does not fall under any of the
specified headings, it has been marked against the head “others”. The
petitioner alleges that the tally of votes had not been informed by the
Returning Officer. The response to the above is that there is no Rule
which says that the candidates should be informed about the postal
ballots. It should be filled up in Form 20.
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18.2 As regards the EVMs in Polling Station Nos. 79 and 95 and
the alleged deficiencies and irregularities, the CCTV footages marked
as Exs.C7 and C8 would clearly show the manner in which the
counting had taken place. The control units marked as Exs.C13 and
C14 have been switched on and tested by the Courts. The 1st respondent
would further go on to state that Ex.C15, 16 and 17 are relevant.
Ex.C16 which is Form 17C clearly shows that the total number of
votes polled is 607. However, in Ex.C15, the total number is shown as
657. 50 numbers had been added which related to the mock poll and if
these 50 votes are deducted, it would be 607 valid votes. P.W7 has
deposed that the election officials when asked to specify the number of
mock votes that could be cast by each booth agent. The Returning
Officer had informed them that 5 to 10 mock votes would be polled by
each booth agent.
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18.3 With reference to Polling Station Number 95, it is the
contention of the 1st respondent that the counting was done on the basis
of VVPAT. Ex.C17-Form-17 C Part II tallies for both the EVMs in
Polling station Nos.79 and 95. Therefore, the allegations made
regarding the above are totally without any basis. The evidence of
P.Ws.1,2,7 and C.W2 in this regard has been quoted by the 1st
respondent. Ultimately, the 1st respondent had contended that there
was no cause of action for filing the election petition and the alleged
cause of action is purely imaginary. Therefore, the election petition
does not contain any material facts or particulars as required under
Section 83 of the R.P.Act. The oral and documentary evidence
produced on the side of the election petitioner is self serving and cannot
be relied upon. On the contrary, Exhibits that have been marked
through the Returning Officer, namely, C16 and C17 make it very clear
that the Returning Officer has acted in accordance with the Conduct of
Election Rules and no exception can be taken to the same. No grounds
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have been made out to interfere with the election and the election
petition deserves to be dismissed.
18.4 The first respondent’s counsel has relied on the following
judgments :
i. (2007) 3 SCC 617 – Virender Nath Gautam Vs Satpal Singh
and Others;
ii. (1982) 1 SCC 691 – Jyoti Basu & Others Vs Debi Ghosal &
Others;
iii. (2012) 4 SCC 194 – Jittu Patnaik Vs Sanatan Mohakud &
Others;
iv. (1976) 1 SCC 687 – Bhabhi Vs Sheo Govind & Others;
v. (2014) 5 SCC 312 – Arikala Narasa Reddy Vs Venkata Ram
Reddygari & Others; and
vi. (2024) SCC Online SC 519 – Karikho Kri Vs Nuney Tayang &
another.
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E.P.No.9 of 2021O.A.No.27 of 2024 :
19. O.A.No.27 of 2024 in E.L.P.No.9 of 2021 had been filed to
appoint an Registrar to scrutinize the 605 rejected postal ballot votes
which have been marked collectively as Ex.C4. This Court had allowed
the said application on 25.03.2024 considering the fact that the returned
candidate, namely, the 1st respondent herein had won by slender margin
and also on on account of the fact that at that stage no evidence had
been produced to prove that the election petitioner or his agents had
been apprised with the reasons for rejection. The said order was
challenged before the Hon’ble Supreme Court in Civil Appeal No.4843
of 2024 in SLP(C).No.8233 of 2024 and the Hon’ble Supreme Court,
by its order, had allowed the appeal and set aside the order dated
25.03.2024, directing this Court to decide the election petition on its
merits as also O.S.No.27 of 2024. Therefore, this Court is considering
the said application on merits as directed by the Hon’ble Supreme
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Court.
20. The main grievance of the election petitioner with reference
to the postal ballots was that the same had been rejected
indiscriminately and without assigning proper reasons and that the
reasons for rejection apart from not being recorded, were also not
communicated to the candidate or his agents. A tabulated statement
had been issued to the applicant on 02.05.2021 stating the reasons for
rejection of 525 postal ballot votes. However, with reference to 80
votes, the same has been rejected under the head “others” without
specifying the reasons. This, according to the election petitioner, was
contrary to the procedures contemplated under the C.E Rules, 1961.
The petitioner would submit that the category “others” is not provided
for under Rule 54A (11) of 54 A(8) of the Rules. Rule 54-A(8) of the
Rules provides 5 reasons for rejecting the postal ballot votes and
nowhere has the Returning Officer being given the authority to record
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the votes under the heading “others” giving discretion to the Returning
Officer to reject the votes. 605 votes, which have been rejected, have
been submitted to this Court as Ex.C4 and is in the custody of the
Court. C.W2, the Returning Officer to a question as to whether the
details were available on the 13C cover would answer that only if the
details on 13 C cover are correct, it would be opened to verify as to
whether 13C declaration form and 13 B ballot papers are kept
separately. Similarly only if the Serial Numbers on 13A and 13B, tally
the ballot papers would be opened. If the serial numbers mentioned on
the cover of 13B and the serial number mentioned inside the ballot
paper differ, the votes would be rejected. The Returning Officer has
also given her explanation for categorizing some of the postal ballots
under the category “others” by stating that the postal ballots received
from the other constituencies without attestation, without signature of
the voter either in the ballot or in the cover were all rejected under the
category “others”, as the Form given to them did not contain such a
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category and therefore, since the Form given to them, contained a
category termed as “others” in serial number 11, these votes were
entered into this category.
21. Therefore, in the light of the directions issued by the Hon’ble
Supreme Court in Civil Appeal No.4843 of 2024, this Court after
reserving the orders had decided to scrutinize the 605 postal votes and
verify if the reasons for their rejection has been properly tabulated.
This Court also decided to examine the photographs taken at the time
of the counting of the postal votes and the videographs, and to
understand the functioning of the electronic voting machine, in order to
consider the issue with reference to the polling station Nos.79 and 95.
22. On the Court’s direction on 11.12.2024, Mr.Niranjan, learned
standing counsel for Election Commission of India, Mr.V.Sreenivasa
Rao, Deputy Manager, Bharat Electronics Limited, Bangalore and
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Mr.K.Marimuth, I-NET Secure Labs Pvt.Ltd., CCTV and Technical
Executive, who were present before this Court, had assisted the Court
in going through the postal ballots. Thereafter, the Box No.157 was
opened in the presence of the Court, Officials from the Election
Commission of India and the members of the Registry. This exercise
commenced at 3.40 pm and the box was closed at 5.00.pm. Thereafter,
the postal ballots were put back into the box and locked in the presence
of the aforementioned persons. The key to the box was retained by this
Court. On the next day, i.e on 12.12.2024, Mr.V.Sreenivasa Rao, the
Deputy Manager, Bharat Electronics Limited had demonstrated and
explained how votes are polled in the EVMs. Thereafter, the matter
was adjourned to 30.12.2024 for perusing the rejected postal ballots in
order to verify as to whether the Rules had been followed. On
30.12.2024, Mr.Ravi, Deputy Registrar, Madras High Court and other
officials were present. The perusal of the postal ballots had
commenced at 11.50 am. and concluded at 04.00pm. The only exercise
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undertaken by this Court was to verify as to whether the reasons for
rejection had been recorded on the postal ballots. All 605 votes were
individually examined. Therefore, this Court has considered the
request made in O.A.No.27 of 2024. This Court, without issuing
directions to the Registrar has undertaken the said exercise by itself.
The EVMs and postal ballots having been marked as exhibits, the
exercise was undertaken by the Court.
Discussion :
23. Heard the learned counsels on either side and perused the
materials available on record.
24. The petitioner has filed this election petition seeking to
declare the election of the 1st respondent to the No.53, Krishnagiri
Assembly Constituency in the State of Tamil Nadu on 02.05.2021 as
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E.P.No.9 of 2021illegal, void and liable to be set aside and to declare the petitioner as
duly elected to No.53, Krishnagiri Assembly Constituency in the State
of Tamil Nadu with effect from 02.05.2021 and for costs.
Findings :
25. Considering the fact that the arguments have been addressed
issue wise, this Court is returning its findings on the basis of the issues
framed, the case of either party and the evidence both oral and
documentary are set out under each issue with the conclusion.
ISSUE No.1 & 2 :
(a) The issue Nos.1 and 2 are as follows:
“1. Whether the election of the 1 st respondent from
the No.53, Krishnagiri Assembly Constituency to the 16th
Tamil Nadu Legislative Assembly, 2021 is liable to be
declared as illegal, ab initio void and set aside?72/150
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2. Whether the 1st respondent has willfully
suppressed his assets in his nomination form and affidavit
thereby materially affecting the election of the 1 st
respondent and rendering his election liable to be set aside
under Section 100(1)(d)(i) & (iv) of the Representation of
People Act, 1951?
(b) Petitioner’s case:
It is the case of the petitioner that the 1st respondent along with
his 3 brothers had owned a total extent of 2 acres and 8 cents of
agricultural land in S.No.207/2A, Rettiyur Street, Rettiyur Village,
Vaniyambadi Taluk, Thirupattur District which was their ancestral
property. The aforesaid property was bequeathed to the 1st respondent
and his brothers by his father through a registered Will dated
25.07.1997 and on their father’s demise, the Will had come into force.
The registered Sale Deed dated 25.10.2004 executed by the 1st
respondent and his brothers in favour of one T.Mahendran would
reflect the same. The 1st respondent and his brothers had appointed one
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A.Murugan as their Power Agent to sell the above property which had
been divided into plots. Between the years 2004-2012, an extent of
78,977 sq.ft ( acre) was sold to various persons by the said Power
Agent. Out of the total extent of 2.08 acres, only an extent of 1.81 acre
was sold leaving behind an extent of 23 cents. The patta in respect of
the property stood in the name of the 1st respondent’s father,
Krishnamurthy. The 1st respondent has deliberately suppressed this
fact. It is the contention of the petitioner that this suppression has
materially affected the election. Considering the fact that the margin of
victory between the two was only 794 cotes, the petitioner would
submit that the nomination papers of the 1st respondent has been
improperly accepted by the election authorities.
(c) Response to the above:
The 1st respondent would submit that the property was no longer
under the ownership of the 1st respondent as he had alienated the same
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E.P.No.9 of 2021much before the submission of the nomination Form. That apart, the
transactions have been recorded in the encumbrance certificate and
therefore, the allegation of the petitioner was totally misconceived. He
would further submit that the allegations are rather vague.
(d) Oral evidence on petitioner’s side.
(i) P.W.1 Senguttuvan
P.W1 has marked Ex.P2 (the same was marked subject to proof
and relevancy) which is the nomination form filed by the 1st respondent
including Form-26 Affidavit. The document has been marked along
with the Certificate under Section 65B of the Indian Evidence Act.
P.W1 would state that the 1st respondent has suppressed his
landholdings in Form-26 Affidavit and his nomination has been
improperly accepted by the Returning Officer. P.W1 would once again
reiterate the contentions made in the petition with reference to issue
Nos. 1 and 2 and state that the 1st respondent had filed a false affidavit.
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Therefore, the acceptance of his nomination was improper, illegal and
contrary to law.
(ii) During his cross examination, to a question as to how the
petitioner would state that the first respondent is the owner of he land
when the patta stood in the name of Krishnamurthy, the petitioner
would respond that the patta stands in the name of the 1st respondent’s
father, Krishnamurthy.
(iii) To another question as to what documents had been filed to
show that the 23 cents of land belonged to the 1st respondent, P.W1 has
responded that the same can be deduced from the Encumbrance
Certificate and the patta that had been issued i.e., Exts.P5 and P4
respectively. The patta stands in the name of the 1st respondent’s father.
To a suggestion that since 23 cents did not stand in the name of the 1st
respondent, there was no necessity to include the same in the Form-26,
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P.W1 would respond that this property was being jointly enjoyed by the
1st respondent and his brothers without being subdivided and therefore
it ought to have been included in the Form-26 affidavit. P.W1 would
state that he had first seen Ex.P2-nomination paper of the 1st respondent
only after the election when it was downloaded from the website of the
Election Commission and he would fairly admit that no objection had
been raised on the date of the scrutiny of the nomination papers.
(iv) In the proof affidavit in lieu of chief examination, the 1st
respondent would submit that it is totally incorrect to state that only an
extent of 1.81 acres out of total extent of of 2.09 acres in Survey
No.207/2A had been sold. The 1st respondent would submit that on the
date of scrutiny of nominations, the petitioner has not raised any
objection as to the non-inclusion of the property in the Form-26
Affidavit. The witness during his cross examination was shown
Ex.P14-Sale Deed in favour of Mahendran through the Power Agent of
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the 1st respondent and his brothers and asked as to whether there was
any other Sale Deed apart from Ex.P14 with reference to the said
property and the answer was in the negative. Thereafter, when a
specific question was put that after the sale, an extent of 23 cents still
remained with the family, the 1st respondent would categorically deny
the same.
(e) Documentary evidence:
A perusal of Ex.P2-the Nomination Form of the 1st respondent
which includes Form-26 affidavit would indicate that the 1st respondent
has clearly stated that he does not own agricultural lands, ancestral
lands, self acquired properties or properties that have been purchased
by him. Against all these columns, the 1st respondent has stated as
“bghUe;jhJ”/ The petitioner would also rely upon Ext.P4-Patta and
Ext.P5-Encumbrance Certificate to contend that the first
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(f) Conclusion :
(i) A perusal of the pleadings, oral and documentary evidence as
also the arguments would indicate that Form-26 Affidavit filed by the
1st respondent before the Election Officer is claimed to be a false
affidavit, in as much as the 1st respondent has not disclosed the fact that
an extent of 23 cents continues to remain with the petitioner. A reading
of the petition and the oral evidence would show that the petitioner has
come to Court with a case that out of the total extent of 2.08 acres of
the land belonging to the 1st respondent and his brothers, only an extent
of 1.81 acre had been sold leaving behind an extent of 23 cents.
However, in the written arguments, the petitioner would state that only
an extent of 1.56 cents has been sold leaving behind an extent of 89
cents of land in the hands of the petitioner. This measurement is not
pleaded either in the petition or in the evidence and the balance land
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said to remain in the hands of the petitioner is shown as 23 cents. The
petitioner has not extensively cross examined R.W1 to prove the willful
suppression. In the course of arguments, the 1st respondent would
submit that the excess land constitutes the OSR and roads near the
house sites which had been formed into a layout of housing plots for
which OSR as well as pathways are mandatory. That apart, the 1st
respondent would submit that this does not amount to suppression,
leave alone a willful suppression, as no land remains with them. This
Court has to consider as to whether the non-disclosure of this fact
would materially affect the election.
(ii) The 4 boundaries would further clarify that roads have been
created for accessing these housing plots. The total measurement of
this 15′ feet pathway has not been factored into the total extent of land
that has been conveyed by the Power Agent to various persons. The
petitioner has not come forward with a categoric case that the 1st
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respondent continues to hold a fixed extent of land and has simply
arrived at the figure of 23 cents by subtracting the total lands sold from
the total land holding. No doubt, in the counter, the 1st respondent has
not come out with specifics regarding his holdings. The 1st respondent
has clearly stated that he does not own any land in the said survey
number. Therefore, the onus is squarely upon the petitioner to prove
that the 1st respondent continues to retain the property and also to state
that the extent of land that the 1st respondent continues to hold. The
petitioner has taken a plea that the first respondent has adduced
evidence and advanced arguments without there being a pleading to
that effect in the counter statement. However, the petitioner who had
alleged suppression, has not proved the same and has simply produced
Exts.P4 and P5 to substantiate their claim. The petitioner has therefore
failed to not only prove the exact extent of land that is retained by the
petitioner, but also the fact that by not divulging the same in the
Form-26-Affidavit, the 1st respondent has materially altered the result
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of the election.
(iii) A recent judgment of the Hon’ble Supreme Court reported in
(2024) SCC Online 519 [Karikho Kri Vs Nuney Tayang & another],
this was a case where the election of the independent candidate
Karikho Kri was sought to be set aside on the ground that the
nomination submitted by him was improperly accepted by the
Returning Officer. The allegation, like in the instant case, was that
Karikho Kri had failed to disclose material particulars in the affidavit
filed in Form 26, inasmuch as he had not disclosed the details of the
vehicles owned by his wife and son. The Itanagar Bench of the High
Court of Assam, Nagaland, Mizoram and Arunachal Pradesh held that
the non-disclosure of information amounts to a corrupt practice within
the meaning of Section 123(2) of the R.P.Act, and held that the
acceptance of his nomination was improper. The High Court answered
the issue as to whether the non-disclosure was of a substantial nature
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affecting his election against the returned candidate and held that the
disclosure of information as per Form 26 of the C.E.Rules was
fundamental to the concept of a free and fair election.
(iv) After discussing the provisions of Section 33 – Scrutiny of
nomination, Section 100 – Grounds for declaring the election to be
void, and Section 123 – Corrupt Practices as set out in the R.P.Act and
the various judicial precedents and relied on the earlier judgment of the
Hon’ble Supreme Court in the case of Vashist Narain Sharma Vs Dev
Chandra reported in (1954) 2 SCC 32, where a three-Judge Bench
observed as follows :
“that the burden of proving that the improper
acceptance of a nomination has materially affected the
result of an election would arise in one of three ways :
(i) where the candidate whose nomination was
improperly accepted had secured less votes than the
difference between the returned candidate and the
candidate securing the next highest number of votes,83/150
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(ii) where the person referred to above secured more
votes, or (iii) where the person whose nomination has
been improperly accepted is the returned candidate
himself. It was held that in the first case, the result of
the election would not be materially affected because
if all the wasted votes were added to the votes of the
candidate securing the next highest votes, it would
make no difference to the result and the returned
candidate would retain the seat. However, in the
other two cases, the result may be materially affected
and insofar as the third case is concerned, it may be
readily conceded that such would be the conclusion.”The Bench went onto the rely upon the Constitution Bench judgment
of the Apex Court in Hari Vishnu Kamath Vs Syed Ahmad Ishaque
reported in (1954) 2 SCC 881, where the Bench considered the scope
of enquiry under Section 100(1)(d) of the R.P.Act and observed that an
election could be set aside when two conditions were satisfied. The
conditions were extracted by the Bench in the following manner :
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E.P.No.9 of 2021“It must, firstly, be shown that there has been
improper reception or refusal of a vote or reception of
any vote which is void, or non-compliance with the
provisions of the Constitution or the Act of 1951, or
any rules or orders made thereunder, relating to the
election or any mistake in the use of the prescribed
form and it must further be shown that, as a
consequence thereof, the result of the election has
been materially affected. The Bench observed that the
two conditions are cumulative, and must both be
established. It was further observed that the burden of
establishing them is on the person who seeks to have
the election set aside.”In the instant case the petitioner has not been able to categorically
assert with the evidence that an extent of 23 cents continued to remain
in the name of the petitioner and the non-disclosure of this has
materially affected the result of the election. The judgment relied on by
the petitioner viz., Krishnamurthy Vs Sivakumar & Others reported
in [(2015) 3 SCC 467] was a case where full particulars of the criminal
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E.P.No.9 of 2021cases against the returned candidate had not been disclosed. The two
Judges observed that criminalisation of politics was absolutely
unacceptable and corruption in public life was ‘indubitably deprecable’.
The two Judges observed that :
“ It is not every failure to disclose information that
would constitute an undue influence. In the context of
criminal antecedents, the failure to disclose the
particulars of any charges framed, cognizance taken,
or conviction for any offence that involves moral
turpitude would constitute an act that causes undue
influence upon the voters.”Ultimately, the two Judges observed that the disclosure of criminal
antecedents of a candidate at the time of filing nomination was
imperative. Therefore, that was a case where criminal antecedents,
which would have definitely weighed in the minds of a voter, had been
deliberately suppressed, thereby, materially altering the result of the
election. However, in the case on hand, the petitioner who claims
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E.P.No.9 of 2021suppression, has not proved the same and has also not proved that the
non-disclosure has materially altered the results. Therefore, the
judgment cited by him would not come to the aid of the petitioner.
Accordingly, Issue No.1 & 2 are answered against the petitioner.
ISSUE No.3
26. Issue No.3 is as follows:-
“3. Whether the 1st respondent is guilty of having been
committed the corrupt practice under Section 123 of the
Representation of People Act, 1951, thereby rendering the
election of the 1st respondent liable to be set aside under
Section 100(1)(b) & (d) (ii)?”
(a) Petitioner‘s case:
The petitioner’s contention is that the 1st respondent, his Chief
Election Agent and his booth agents along with their party workers had
indulged in distributing a sum of Rs.500/- to the voters in the
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E.P.No.9 of 2021Krishnagiri Assembly Constituency as an illegal gratification for the
purpose of securing their votes along with the pamphlets. It is the
petitioner’s contention that such distribution has taken place with the
consent, knowledge, instruction and authorization of the 1st respondent.
The incidents of such distribution of cash have been set out in the form
of a tabulated statement, which is extracted herein below:
Illegal Gratification
gratification to Voters
1 Akbar Govindha Vinayagam, Residence 04-3-2021 7.30 C. Settu
chetty Street, Kaveripattinam of the PM
AIADMK voter
Kaveripattinam Party
Worker
2 Madhavan Kottai Street, Vinayagam, Residence 04-3-2021 8.30 T.Vasudevan
Kaveripattin of the PM
Kaveripattinam am voter
AIADMK
Party
Worker
3 Raja Anna Nagar, Vinayagam, Residence 04-3-2021 9.15 S. Prakash
Errahalli, Kaveripattin of the PM
Kaveripattinam am voter
AIADMK
Party
Worker
4 Prakash Savuloorkoot Vinayagam, Residence 04-3-2021 9.30 M.Chandra
road, Kaveripattin of the PM Sekaran
Santhapuram am voter
Panchayat, AIADMK
Kaveripattinam Party
Worker
5 Thirupathi Mittahalli, Vinayagam, Residence 04-4-2021 7.00 S. Krishna
Kaveripattinam Kaveripattin of the AM moorthy
am voter
AIADMK
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Party
Worker
6 Varunkumar Thomson Vinayagam, Residence 04-4-2021 7.20 K. Dharma
pettai, Kaveripattin of the AM Kumar
Kaveripattinam am voter
AIADMK
Party
Worker
7 Dinesh Shanmuga Vinayagam, Residence 04-4-2021 8.15 C. Settu
chetty Street, Kaveripattin of the AM
am voter
kaveripattinam AIADMK
Party
Worker
8 Yaaraf Govindhapur Vinayagam, Residence 04-4-2021 8.30 M. Velumani
am Kaveripattin of the AM
extension, am voter
Kaveripattinam AIADMK
Party
Worker
Therefore, it is the contention of the petitioner that the above said 8
persons had received cash from one Vinayakam who is an AIADMK
worker and the witnesses to such distribution of cash have also been
detailed in the aforesaid tabulated column. It is the contention of the
petitioner that by distributing money for votes, the 1st respondent had
indulged in corrupt practice as contemplated under Section 123 of the
RP Act thereby rendering the 1st respondent’s election liable to be set
aside.
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(b) Response to the above:
The 1st respondent would submit that the petitioner is trying to
make out a case of distribution of cash on the basis of certain
photographs which is not backed by substantial proof. The 1 st
respondent therefore called upon the petitioner to prove beyond
reasonable doubt that the photographs proves the distribution. He
would submit that the petitioner has nowhere described/specified the
names of the agents of the 1st respondent with their full particulars
indicating that they had indulged in corrupt practice except for a
general statement. He would further submit that the said Vinayakam
does not belong to AIADMK and that there is nothing to connect him
with the party. The material details regarding the persons to whom the
money was distributed, the amount so distributed, the person on whose
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E.P.No.9 of 2021behalf the money has been distributed etc.,have not been proved
beyond reasonable doubt. Therefore, the 1st respondent would submit
that the petitioner has failed to prove that he had indulged in corrupt
practice for obtaining votes.
(c) Oral evidence:
(i) The petitioner as P.W1 in his chief examination has more or
less reiterated the statements made in the Election Petition. In his Chief
examination once again, the said facts have been set out.
(ii) In his cross-examination, to a pointed question regarding the
absence of details in the election petition about the date on which the
money was distributed to voters, the petitioner elaborated that the
money was distributed on 03.04.2021 and 04.04.2021 all over the
constituency, and specifically in Kaveripattinam to Akbar, Raja,
Tirupati, and Prakash.
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(iii) To a question as to whether the witnesses listed in the
tabulated statement were his party workers, the petitioner, while
admitting the same, also clarified that they are members of the public.
(iv) P.W2 (S.Tamilselvan) The Chief Election Agent of the
Election Petitioner has not deposed about the alleged illegal
gratification.
(v) P.W3 (S.M.Chandrasekar) has been examined to prove the
contentions that the 1st respondent has indulged in canvassing for votes
by giving illegal gratification. He would state that, while he was
canvassing for votes for the petitioner at Govinda Chetty Street, he was
informed that one Vinayakam, who was a spokesperson of the
AIADMK was distributing pamphlets along with Rs.500/- notes for and
on behalf of the 1st respondent at Savalurkoot Junction. He would
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submit that he had gone to the spot where he saw Vinayakam
distributing Rs.500/- notes to Akbar asking him to vote for the 1st
respondent.
(vi) P.W4 (M.Velumani) has also been roped in to give evidence
about the illegal gratification. He would state that he had seen one
Yaraf receiving the money from Vinayakam, the AIADMK worker
who was asking him to vote for the 1st respondent at Govindapuram
Extension. P.W.4 would submit that he had been appointed as a
counting agent or election agent of the election petitioner and that he
was only a District-In-charge who moved around at his own discretion.
He would also admit that no complaint has been given to the Returning
Officer like the case of P.W.3.
(d) Documentary evidence:
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E.P.No.9 of 2021Ex.P15 photograph is the only document that has been filed on
the side of the petitioner to show that there has been an illegal
gratification by the 1st respondent through the distribution of money in
exchange for votes. There is nothing to show that a complaint had been
lodged with the Election authorities regarding this illegal gratification.
(e) Conclusion:
(i) The petitioner would contend that the 1st respondent had
indulged in illegal gratification by distributing money to the voters
through his two agents, namely Vinayakam and Arumugam. The
petitioner’s agent P.W.3, M.Chandrasekaran claims to have taken the
photograph-Ex.P15 in his mobile phone, which conveniently has fallen
into the water. He would state that he had taken Ext.P15 showing the
distribution of cash to one Akbar by Vinayagam. Further, though he
claims that the fact was informed to the petitioner on the very same
day, it is rather strange that the witness, P.W.3 who had taken the
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E.P.No.9 of 2021photograph in his mobile phone, has not deemed it fit to forward this
photograph to the petitioner by whatsapp or by otherwise.
(ii) In fact to a question that was put by the Court to the witness
as to whether at his request the persons giving and receiving the money
had posed for the photograph, the witness has affirmed the same.
However, during the cross examination of the witness, much later in
point in time, he retracted the admission made to the Court, which is
clearly an afterthought.
(iii) That apart, a mere perusal of Ex.P15-photograph would
clearly show that the persons in the photograph have been asked to
stand for a photo. The photographs is supposed to have been taken
when canvassing of votes was at its peak. Beyond and around the
persons standing in the photograph, there is absolutely no activity to
show that an election campaign was on, particularly when it is alleged
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that it was during the canvassing, the money was distributed. Further,
the said Vinayagam, who is the person allegedly distributing the
money, has later joined the DMK party to which the petitioner belongs.
(iv) The witness, in his answer to the Court, has admitted the fact
that persons had posed for a photograph. The mobile phone in which
photograph is alleged to have been taken has also not been made
available and the excuse given is that it has fallen into the water.
(v) As stated earlier, to a specific question put by the Court as to
whether the witness has asked them to stand for a photo, the witness
had admitted the same. He would then state that Rs.500/- notes were
also distributed to Prakash at Savalurkoot Junction. He was unable
then, to take a photo as there was a large crowd.
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(vi) In the cross examination, he would submit that he had seen
the campaigning and the illegal gratification being given to the voter by
Vinayakam and he was there at the spot at 7.30. There is nothing to
show either in the chief examination or in the cross examination as to
the date or time on which the photograph was taken. In response to a
question as to why the phone was not produced, he would submit that
the same had fallen into the water. The witness admits that he has not
forwarded the photographs to the Election Petitioner on the very same
day that he claims he had taken the same.
(vii) In the petition as well as in the proof affidavit of P.W1, 8
persons are said to have received illegal gratification from the 1st
respondent’s agent along with two witnesses. However, the petitioner
has chosen to examine only two witnesses, both with reference to the
alleged illegal gratification at Govinda Chetty Street. In the tabulated
statement, P.W3 (Chandrasekar) is shown as the person witnessing the
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illegal gratification being given to one Prakash at Savalurkoot Road
and it is C.Settu who is shown as the witness regarding the alleged
illegal gratification to Akbar at Govinda Chetty Street. The said Settu,
however, has not been examined on the side of the petitioner.
However, P.W.3, Chandrasekaran has adduced evidence regarding the
alleged illegal gratification given to Akbar and has claimed to have
clicked Ext.P15 photograph. This would go to show that the P.W.3
who claims to have seen Akbar having received the money could not
have witnessed the same, since even according to the election
petitioner, it was one Settu who had witnessed the exchange of money
from the AIADMK worker, Vinayakam to Akbar. Therefore, the
petitioner has not proved the exchange of money for votes through
concrete evidence. Therefore, Issue No.3 is answered against the
petitioner.
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ISSUE No.4 :
27. Issue No.4 is as follows:
“4. Whether the 1st respondent is guilty of having been
committed the corrupt practice under Section 123(7) of the
Representation of People Act, 1951, thereby materially affecting
the election of the 1 st respondent and rendering it liable to be set
aside under Section 100(1)(b) & (d) (ii) of the Representation of
Peoples Act, 1951 ? ”
(a) Petitioner‘s case:
It is the contention of the petitioner that the 1st respondent had
utilized the services of one Nagaraj who is a Supervisor of the Tamil
Nadu Electricity Board, now called TANGEDCO for canvassing on his
behalf across the constituency between the period 05.03.2021 and
25.03.2021 with a T.Shirt printed with the AIADMK party symbol.
The petitioner would allege that the said Nagaraj had misused the
Government car for canvassing for the first respondent and the same
has been witnessed by the petitioner and his Chief Election Agent,
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Tamilselvan. C.W3 a third party has been examined to prove the same.
He claims that he had witnessed the same on 24.03.2021 at Aalapatti
within the Krishnagiri Constituency, where the said Nagaraj was
campaigning sporting an AIADMK party towel. In short, the petitioner
would contend that a Government employee has openly advertised his
allegiance to a particular party.
(b) Response to the above:
The said Nagaraj is not a Government servant and cannot be
treated as an official machinery of the State. The 1st respondent would
further submit that if the same had taken place, it was well open to the
petitioner to lodge a complaint. However, the said complaint has not
been lodged. That apart, the petitioner has not been able to prove that
Nagaraj is a public servant and was campaigning misusing his post.
The 1st respondent would rely on the judgment reported in (1980) DLT
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E.P.No.9 of 2021337 – ILR 1980 Del 1345 [C.M.Stephen Vs Atal Behari Vajpayee]
which also dealt with a case involving the misuse of official machinery.
(c) Oral evidence:
To prove the above said fact, the petitioner has chosen to
examine C.W3, Senthil Kumar. During the cross examination, he
would state that he had seen Nagaraj canvassing on Wednesday, the
24th day of March 2021 at Aalapatti which falls within the locality of
Krishnagiri. In the cross examination by the 1st respondent’s counsel,
he would submit that he is employed as a Driver with the Tamil Nadu
State Transport Corporation. He would submit that in the year 2021, he
was plying between the Tiruvannamalai-Bangalore road and that on the
said date i.e 24.03.2021, he was on his weekly off. He would also
admit that he has no proof to show that Nagaraj was canvassing for the
AIADMK party. He would admit that he is the member of the Trade
Union, called LPF, which is an affiliate of the DMK party to which the
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E.P.No.9 of 2021election petitioner belongs. During the cross examination by the
learned counsel for the petitioner, a specific question was put as to
whether he was a member of any political party, he had denied the
same. Therefore, the evidence is sought to be disregarded on the
ground that he is an interested witness.
(d) Conclusion :
(i) The allegations made in the election petition is that, Nagaraj, a
Supervisor in the Tamil Nadu Electricity Board, now TANGEDCO,
had canvassed for the 1st respondent from 05.03.2021 to 25.03.2021 by
wearing a T-Shirt, on which the AIADMK party symbol was printed;
that he had campaigned at Kaveripattinam Town, Aaalapatti,
Pazhakudi, Madipatti, Vengaleri, Kuppan Road, Krishnagiri Town by
using the Government car. In the election petition, the petitioner would
state that it was the 1st respondent and his Chief Election Agent who
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had witnessed this, and neither in the election petition nor in evidence
of PW1, is any reference made to C.W3, Senthil Kumar.
(ii) In the proof affidavit in lieu of Chief examination, P.W1
would state that Nagaraj’s wife was a former MLA of the Uthangarai
Constituency from the AIADMK party and that she held office between
2011 to 2016 and 2016-2021. In his cross examination, he would
submit that Nagaraj was a voter in the Krishnagiri Constituency, but
her wife stood for election in Uthangarai. In his cross examination, he
had, however, admitted that he had not given any complaint in writing
to the Election Commission regarding the misuse of the official petition
for campaigning.
(iii) P.W2 who is the petitioner’s Chief Election Agent would
submit that he has proof to show that Nagaraj was a voter in the
Krishnagiri Constituency, however, proof has not been produced. The
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witness would fairly admit that nowhere have they given details about
the date when they had seen the said Nagaraj voting in various places.
The witness would also state that they have filed the document to show
proof that Nagaraj had campaigned along with the petitioner (however,
this document had not been produced / marked by the petitioner).
(iv) P.W2, in response to a question that the said Nagaraj had no
connection with Krishnagiri and that he was not a voter from the said
Constituency, has responded that his wife was a Chairman of the
Krishnagiri Union in the year 1993. The petitioner has roped in C.W3
to adduce evidence with reference to the campaigning by Nagaraj. This
witness would state that he had seen Nagaraj at Kaveripattinam Town
(answer to questions 20 to 22).
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(v) The petitioner, who had also contended that the said Nagaraj
was using the official vehicle for campaigning, has not let in any
evidence, either documentary or oral, to prove the same.
(vi) Therefore, from the above, it is clear that the election
petitioner has not come forward with a definite case. The case pleaded
is that Nagaraj, who is a voter of Krishnagiri Constituency and a
Supervisor in the Tamil Nadu Electricity Board, has misused his
official position by using the car for campaigning and that apart,
wearing a T-Shirt embossed with the AIADMK party symbol and with
a towel also embossed with the AIADMK party symbol. However,
none of these statements have been substantiated by proof and the oral
evidence is also vague. Further, witnesses have contradicted each other.
The pleadings in this regard are also very sketchy and therefore, Issue
No.4 is also answered against the petitioner, as this petitioner has not
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been able to prove his contention that the first respondent has indulged
in corrupt practices.
Issue Nos. 5 and 6:
28.1 The 5th and 6th issue pertain to excess election expenditure
incurred by the 1st respondent and plastering posters on Government
buildings and properties which are as follows:
“5. Whether the 1 st respondent has exceeded his
permitted election expenditure and thus violated Rule 90 of the
Code of Conduct Rules, 1961 r/w Section 77 of the
Representation of Peoples Act, 1951, thus committing a corrupt
practice under Section 123(6) rending his election liable to be
set aside under Section 100(1)(b) & (d) (ii), (iv) of the
Representation of Peoples Act, 1951 ?
6. Whether the 1st respondent, and with his knowledge,
consent and direction, his agents and other party workers have
plastered the walls of Government buildings and public
properties with posters thereby violating the Model Code of
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E.P.No.9 of 2021liable to be set aside under Section 100(1)(d)(iv) of the
Representation of Peoples Act, 1951 ?
(a) Petitioner’s case
i) Wall paintings:
It is the case of the petitioner that the election commission had
fixed a maximum of Rs.30,80,000/- as total election expenditure under
different categories for each candidate. The petitioner would submit
that the 1st respondent had spent a sum of Rs.20,00,600/- for wall
painting advertisements alone to propagate his name and his party
symbol “two leaves”. This wall painting advertisements has been done
with the knowledge, consent and authorization of the 1st respondent.
The same has been physically verified by the petitioner, his agents and
his party workers. On such verification, the petitioner has come to
learn that nearly 22330 sq.ft area has been covered towards wall
painting advertisements in all the 44 panchayats. The petitioner would
further submit that the compact disc and photos have been filed along
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E.P.No.9 of 2021with the petition and that paragraph 12 of the election petition sets out
in a tabulated statement the various villages in which the wall paintings
has been done, the extent of these wall paintings and the expenses
incurred. The petitioner would contend that on the sole ground of
excess expenditure, the 1st respondent’s election deserves to be set aside
as it is in excess of the amount stipulated under Rule 90 of C.E Rules,
1961 and this has materially affected the election by swaying the
voters. This is also a corrupt practice under Section 123(6) of R.PAct
and the election is liable to be set aside under Section 100(1)(b) of R.P
Act.
ii) Wall Posters
The petitioner would submit that the 1st respondent, his Chief
Election Agent and his booth agents along with their party workers
acting under the consent, knowledge, instructions and authorization and
cost of the 1st respondent have plastered the walls of the Government
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E.P.No.9 of 2021buildings belonging to the Krishnagiri Municipality with AIADMK
party symbols. He would further submit that on several flyovers, the
1st respondent has plastered posters. It is the contention of the
petitioner that this plastering of walls on the public property was
noticed by his election agents, V.Vengattappan, S.Krishnamoorthy,
M. Chandrasekar, S.Prakash and M.Velumani. They had reported the
same to the petitioner and his Chief Election Agent. This act is against
the Model Code of Conduct. The petitioner on 04.04.2021 had given a
representation to the respondents 16, 17 and 18 and the Election
Observer of the Krishnagiri Assembly Constituency to take appropriate
action against the 1st respondent and his party. However, no action was
taken. The petitioner would submit that the 1st respondent would have
spent a sum of Rs.10/- per poster and has willfully suppressed the same
in the election expenditure account maintained by the 1st respondent
under Section 77 of the RP Act. This has not been taken note of the
Returning Officer, the 18th respondent.
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(b) Response to the above:
The 1st respondent has countered this allegation by submitting
that the document which has been submitted by the petitioner in
support of this allegation is dated 03.03.2021. However, the 1st
respondent has filed his nomination only on 12.03.2021 and therefore,
it cannot be treated as an unlawful practice.
(c) Oral Evidence:
(i) The petitioner as P.W1 in his proof affidavit in lieu of chief
examination reiterated the contentions regarding the above two issues
as set out in the election petition and has marked photographs, the
election expenditure statement of the 1st respondent and the
representation given to the 18th respondent.
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(ii) In his cross examination, the petitioner would submit that he
had arrived at a sum of Rs.20,00,600/- as an estimate for the wall paints
based on the estimate given by Surya, the painter. The petitioner would
admit that he had not received any written estimate from the said Surya
and that he had made calculation on the basis of the details given by the
said Surya. He would fairly concede that in his election petition, he has
not mentioned any details regarding when he had met with the said
Surya and obtained details from his as also the manner in which he has
arrived at a total extent of 22,300 sq.ft as the area in which the wall
painting has been done.
(iii) When a question has been asked as to whether a complaint
has been lodged, the petitioner as P.W1 would submit that since the
details of the expenses were to be given after the election, he had not
submitted the complaint. In response to a question that it is mandatory
that the Expenditure Observer maintains an expense book and the same
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has to be updated every morning and evening, he has denied the
suggestion.
(iv) The petitioner would submit that though he has not
mentioned as to when his agents had informed him about the sticking of
posters, he had however given a complaint to the Returning Officer.
He would fairly admit in his cross examination that he has not produced
any evidence regarding the sticking of the posters by the AIADMK
workers, but would hasten to add that he has done so in the election
petition. He would submit that the written objections can be given only
after the elections are over.
(v) P.W2, the Chief Election Agent would submit that he had
visited one of the Villages which is shown in the tabulated statement in
paragraph 12 of the election petition. He would submit that he had
witnessed the paintings being done in R.Poosaripatti Village of
Bethathalapalli Panchayat. He would admit that no complaint in
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writing was given to the election officials regarding the painting of the
AIADMK symbol on the walls. He would admit that he had not
personally taken the measurements. However, to another question as to
who were present with P.W2 when measurements of the painting in
R.Poosaripatti Village were taken, P.W2 had replied that his agents,
Dharmakumar and Govindraj were present at that time, however, he
does not remember the date on which these measurements were taken.
He would fairly admits that he does not have any personal knowledge
on the posters affixed on the flyovers and through his agents, he has
come to know about this. Once again, there was no complaint lodged
against the Election Commission.
(vi) P.W5-Prakash Sivaraj, the Constituency in-charge of the
election petitioner would state that he had seen the wall paintings of the
AIADMK party in the villages which has been supervised by him. He
would submit that on 01.04.2021, while he was doing the rounds, he
saw one Kanniyappan, Ward Secretary of the AIADMK painting a wall
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near the lake. When questioned as to whether he had obtained
permission for the same, the said Kanniappan responded that he was
doing only as per the instructions of the 1st respondent. He would
submit that he had informed the same to the petitioner. The petitioner
had asked him to leave the place after photographing the wall painting.
He would submit that the photographs were taken on his mobile phone
and when asked whether he could produce his One Plus 7 phone, in
which he had taken photographs, he would state that it is not with him.
He would also admit that none of the photographs have the date and
time mentioned. The witness would further submit that he had seen
the wall paintings being done in Periyamuthur Panchayat and the same
was completed by 11.00 a.m. However, he did not take the
photographs while the painting was being done but had taken a photo
after it was completed. He would further sate that this fact was
informed to the petitioner at 12.00 on the very same day, i.e. On
01.04.2021. He would also admit that no complaint had been given to
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the election Commission about these wall paintings. The witness
would state that the timings and dates are in phone. To a question put
by the Court, he would answer that he had not written down the date
and time just as he had written down the name of the places. He would
depose that the measurements were taken in fact, and the same was
handed over their candidate Senguttuvan, the petitioner herein. To a
question as to whether he would produce the notes of measurement, he
would respond that he could not as he had handed over the same to the
petitioner. However, this notes of measurement has not been produced
before this Court.
(d) Documentary evidence:
Ex.P7 (marked subject to objections regarding its proof and
relevancy) is a photocopy of the petitioner’s representation dated
04.04.2021 addressed to the Chief Election Officer, the District
Election Officer, District Collector, the Election Officer and the
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E.P.No.9 of 2021Election Observer regarding the wall posters with the party symbol
being put up on Government buildings and flyovers by the AIADMK,
calling upon them to take action against the 1st respondent. There is
nothing to show that this letter has been served on the official
concerned and the mode in which the letter has been despatched is also
not clear from a perusal of the document. In the photographs which
have been marked in Ex.P16 series, the names of the places have been
inserted in the photographs. However, there is no time or date.
(e) Conclusion :
It is the petitioner’s case that the wall painting and wall posters
were violative of the Election Rules as it far exceeded the minimum
amount fixed by the Election Commission. To prove that the petitioner
has exceeded this amount, he has come forward with a tabulated
statement showing the wall painting done in each panchayat and
contending that over 22330 sq.ft. had been painted. The petitioner case
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E.P.No.9 of 2021is that an amount of Rs.20,00,600/- has been spent on these wall
paintings. This is arrived at on the basis of the estimate given by the
painter, Surya. However, the petitioner has not chosen to examine the
said Surya. Further, the photographs marked as Ex.P16 series do not in
any manner prove the case of the petitioner that this extent of 22330
sq.ft has been painted and that these paintings are in respect of the
places as printed in the photographs. The photographs would only show
that the wall paintings have been done. In fact, P.W6, to a question put
by the Court, has fairly conceded that they had also painted their party
symbols on private houses. As regards the wall posters fixed on the fly
overs, there was no documentary proof except for the oral evidence.
Though in the petition and evidence, the petitioner had contended that
the wall posters were put up on the government buildings and fly overs,
however during evidence, they would contend that it was put up on the
flyovers. Interestingly, though P.W5 and P.W6 would submit that no
compliant was lodged by them, Ext.P7, letter dated 04.04.2021 had
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E.P.No.9 of 2021been produced to state that a complaint was lodged. Further, P.W1
would submit that he had seen the wall painting on 01.04.2021.
Similarly, P.W6 would state that he had seen the wall paintings on
04.04.2021 and 06.04.2021. The polling date was on 06.04.2021.
Ext.C10 is a shadow observation record which is the statement of
expenses incurred each day by the first respondent. This record has
been countersigned by the election officer and the presumption is that it
has been cross-checked by the officials.
28.2 Section 77 of the R.P.Act deals with election expenses and
the maximum thereof. Section 77(1) with its explanations and
provisions reads as follows :
“ 77. Account of election expenses and maximum thereof :-
1. Every candidate at an election shall, either by himself
or by his election agent, keep a separate and correct118/150
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E.P.No.9 of 2021account of all expenditure in connection with the
election incurred or authorised by him or by his
election agent between the date on which he has been
nominated and the date of declaration of the result
thereof, both dates inclusive.
Explanation 1.—For the removal of doubts, it is
hereby declared that—
(a) the expenditure incurred by leaders of a political
party on account of travel by air or by any other means
of transport for propagating programme of the political
party shall not be deemed to be the expenditure in
connection with the election incurred or authorised by a
candidate of that political party or his election agent for
the purposes of this sub-section;
(b) any expenditure incurred in respect of any
arrangements made, facilities provided or any other act
or thing done by any person in the service of the
Government and belonging to any of the classes
mentioned in clause (7) of section 123 in the discharge
or purported discharge of his official duty as mentioned
in the proviso to that clause shall not be deemed to be
expenditure in connection with the election incurred or
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authorised by a candidate or by his election agent for
the purposes of this sub-section.
Explanation 2.—For the purpose of clause (a) of
Explanation 1, the expression “leaders of a political
party”, in respect of any election, means,—
(i) where such political party is a recognised political
party, such persons not exceeding forty in number, and
(ii) where such political party is other than a recognised
political party, such persons not exceeding twenty in
number, whose names have been communicated to the
Election Commission and the Chief Electoral Officers of
the States by the political party to be leaders for the
purposes of such election, within a period of seven days
from the date of the notification for such election
published in the Gazette of India or Official Gazette of
the State, as the case may be, under this Act:
Provided that a political party may, in the case where
any of the persons referred to in clause (i) or, as the
case may be, in clause (iii) dies or ceases to be a
member of such political party, by further
communication to the Election Commission and the
Chief Electoral Officers of the States, substitute new120/150
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E.P.No.9 of 2021name, during the period ending immediately before
forty-eight hours ending with the hour fixed for the
conclusion of the last poll for such election, for the
name of such person died or ceased to be a member, for
the purposes of designating the new leader in his place.Section 77(3) provides that the total expenditure should not exceed the
amount prescribed.
28.3 In the judgment reported in 1996 (2) SCC 752 [Common
Cause (A Regd. Society) Vs. Union of India & Others], the Hon’ble
Supreme Court was considering a public interest litigation which
sought to bring about transparency in election funding. The Bench
was considering Section 77 of the R.P.Act alongside Sec.293A of the
Companies Act and Section 13A of the Income Tax Act. The Bench
prima facie observed that in terms of Explanation (1) to Section 77 of
the R.P.Act, the expenditure incurred by a political party is presumed to
be that of the candidate himself but the said presumption was
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E.P.No.9 of 2021rebuttable. Once rebutted, the expenditure shall be deemed to have
been incurred by the political party.
28.4 This, therefore pre-supposes that the petitioner who seeks to
set aside the election of the returned candidate has to show that the
expenses have bee incurred and thereafter, it is for the returned
candidate to rebut the presumption. In the petition, the petitioner has
given a tabulated statement of the alleged area in which the wall
painting has been put up and tried to substantiate the same through
Ext.P.16 photo series and the oral evidence of P.W.5 and P.W.6. The
petitioner has not chosen to examine Surya, the painter who is supposed
to have given them the per sq.ft. Rate and they have also not produced
the working sheet for having taken the measurements. Therefore, the
initial onus of proving that the first respondent had put wall paintings to
an extent of 22,330 sq.ft., has not been proved by the petitioner,
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E.P.No.9 of 202128.5 Further, the petitioner has not been able to establish that this
excess expenditure incurred has materially affected the result of the
election. In the judgment of the Hon’ble Supreme Court reported in
1999 (1) SCC 666 [L.R.Shivaramagowda & Others Vs
T.M.Chandrashekar (dead) by LRs & others], the three Judges Bench
had observed that in order to declare a election to be void under Section
100(1)(d)(iv), it is absolutely necessary for the election petitioner to
plead that the result of the election insofar as it concerned the returned
candidate has been materially affected by reasons of non-compliance
with the provisions of the Act and Rules. Therefore, since the
petitioner has not been able to prove the allegation with reference to
over expenditure and the paintings on the public buildings and fly
overs, Issue Nos. 5 and 6 are answered against the petitioner.
ISSUE No.7:
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E.P.No.9 of 2021
29. The issue No.7 relates to the rejection of postal ballots and
the counting recorded in two EVMs :
Whether the Returning Officer of the No.53, Krishnagiri
Constituency committed irregularities and illegalities by
improperly rejecting the postal ballot votes and in counting the
votes recorded in the EVMs, thereby materially affecting the
election of the 1 st respondent rendering the election liable to
be set aside under Section 100(1)(d)(iii) of the Representation
of the Peoples Act, 1951 ?
(a) Petitioner‘s case:
(i) Improper rejection of postal ballots and the counting of votes
recorded in EVMs:
It is the case of the petitioner that the 18th respondent had
commenced counting of the votes at 08.00 am in the presence of the
petitioner’s Chief Election Agent and other agents (the date of the
counting has not been stated). It is the contention of the petitioner that
his agents noticed that several postal covers were being discarded by
the officials without assigning reasons for the covers having been
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E.P.No.9 of 2021rejected. The covers were summarily discarded without even
informing the petitioner’s Chief Agent, Tamilselvan. Thereafter, the
Chief Agent requested the 18th respondent to show the results of the
postal ballots to all the candidates and their agents and reject the same
only if there were reasonable grounds for rejection. The 18th respondent
refused to show the result and rejected 605 covers without assigning
any reasons. The petitioner would submit that the counting of the
postal ballots was completed by 1.00.pm. Thereafter, the counting of
EVMs started and after the counting of EVMs at around 9.30pm, the
Returning Officer had handed over the total tally of votes received
through postal ballots. To the shock of the petitioner, 605 votes were
rejected out of 3,318 votes polled. On 02.05.2021, the petitioner had
made a representation stating that the rejection of 605 votes was illegal
and without assigning the reasons. The petitioner would further submit
that initially, the Returning Officer had kept these postal ballots
separately promising to open them at a later point in time. However,
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E.P.No.9 of 2021without informing the petitioner or his agents, the postal ballots were
taken up for counting and the 605 covers had been rejected. The
reasons for rejection were given in the reply dated 02.05.2015 in a
tabulated statement extracted herein below:
Sl. Reasons for Rejection Table Table Table Table Service Grand
No. of PB 1 2 3 4 Votes Total
1. 13A Declaration Found 22 7 – 1 141 30
Defect
2. 13A not found in 13C 13 34 14 14 2 75
3. Multiple Votes Recorded 2 6 3 1 – 11
4. PB serial number not 83 64 33 44 – 224
matched
5. No marking / Mark on 2 2 – 1 2 5
blank area
6. PB found outside of 13B 1 1 – 1 14 3
7. Spurious PB/ Damaged PB – – – – – –
8. Elector Identifiable 2 2 – 2 – 6
9. Received lately – – – – – –
10. 13B not found PB No 11 – – – – 11
11. Others – – 55 – 25 55
Total 136 116 105 64 184 605
The petitioner would contend that the Rules does not contemplaterejection under the head “others”.
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(ii) The Deficiencies and irregularities in counting the EVM
votes:
(a) It is the contention of the petitioner that with reference to
EVM in Polling Station No.79 bearing Control Unit No.BCUAF08025,
serious irregularities were committed by the Returning Officer. It is the
case of the petitioner that on 06.04.2021, a mock poll was conducted in
all the polling booth at 6.00.am. The petitioner’s agents participated in
the mock poll to check if the EVM control unit and VVPAT were
functioning properly and were in order. After the mock poll, the Booth
Level Officer (BLO) did not reset the EVM before commencing the
actual poll and therefore, 50 votes cast in the said EVM were invalid
votes. This fact was informed by the Returning Officer on the date of
the counting i.e., on 02.05.2021. The Returning Officer informed that
this EVM will be kept aside and would be counted later through its
VVPAT. However, the EVM with the VVPAT was taken up for
counting without the presence of the petitioner and his agents.
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(b) Yet another irregularity was at Polling Station No.95, bearing
Control Unit No.BCUEF88410. This Unit was taken up for counting
in Round 9 at Table 1, where EVM malfunctioned. The Officer in-
charge was directed by the Returning Officer, to keep the control unit
separately and count the same at the end. However, once again, the
counting was undertaken without the presence of the petitioner and his
agents. The petitioner had therefore submitted a representation on
02.05.2021 to the 18th respondent stating that the entire counting
process was doubtful and requested for recounting of all EVMs and
postal votes. The said request was refused by the 18th respondent under
Rule 63(3) of C.E.Rules, 1961. The counting of votes through VVPAT
in the absence of the petitioner and his agents and without following
the procedures contemplated under Rule 56 of C.E.Rules, 1961 by the
18th respondent has materially affected the election of the petitioner.
(b) Response to the above:
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E.P.No.9 of 2021The 1st respondent except for making an over all denial of the
allegations, has not raised specific defence to counter the narrative.
(c) Oral evidence:
(i) In order to substantiate their allegations, the petitioner has
examined P.W7, Raj Kumar, the Booth Agent of the petitioner for
Polling Booth No.79. The said witness in his chief examination would
submit that all the booth agents had polled around 10 mock votes each
and he had polled 5 mock votes. He would further submit that after the
mock votes were polled, he had requested the Retuning Officer to erase
the votes. The Officials informed him that it would be done, but
however without erasing the same, the poll had started. He would
submit that at 6.00pm, he came to realize that since the officials had a
tally of 607 votes. However, his entries showed only 557 votes. None
of the above statements find place either in the Election Petition or in
the Chief examination of the petitioner. He would further submit that
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E.P.No.9 of 2021these booth agents were present during the mock poll. In his cross
examination, he would retract and state that the officials had asked each
agent to cast 5 or 10 votes. He had not seen how many votes the other
booth agents had cast. To a question as to the basis on which he had
come to the conclusion that 607 votes were cast, the witness would
state that it was on the basis of the booth list. However, to a question
as to whether he could produce the booth list with markings, he would
answer that he had handed it over to the election petitioner.
(ii) The petitioner had issued subpoena to the Revenue District
Officer (C.W.1). C.W1 had marked 14 documents as Ex.C1 to C14
which were sought for and allowed in A.No.925 of 2023 and the same
were marked. The same is extracted herein below:
Ex.C1 is the Roundwise Tabulation Sheet and the Final
Tabulation Sheet.
Ex.C2 are the records pertaining to counting of postal
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E.P.No.9 of 2021of postal ballot votes.
Ex.C3 is the order dated 02.05.2021 passed by the Returning
Officer in respect of the rejection of postal ballots.
The 605 rejected postal ballots with their respective
accompanying documents has been produced and they are
contained in the box. The box received is marked as Ex.C4
together with the key and it is locked and the box is handed
over to safe custody.
The box containing 750 postal ballots polled in favour of the
1st respondent along with accompanying documents is
marked as Ex.C.5.
Ex.C6. is the objection dated 02.05.2021 filed by the Election
Petitioner on rejection of postal ballots.
Ex.C7. Series 2 numbers are the CCTV footage for booth
numbers 79 and 95. (The documents are marked subject to the
production of certificate under Sec.65 B of the Evidence Act)
Ex.C8. is the CCTV footage of the counting center. (The
documents are marked subject to the production of certificate
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E.P.No.9 of 2021under Sec.65 B of the Evidence Act)
Ex.C9. is the expenditure statement filed by the 1st
respondent.
Ex.C10. is the shadow observation record of the expenses of
the 1st respondent maintained in the SOR (Shadow
Observation Register).
Ex.C11 is the Form 26 and Nomination Form of the 1st
respondent.
Ex.C12 series (2 nos) is the representation given by the
Election Petitioner and the order dated 02.05.2021 passed by
the Returning Officer.
Ex.C13. is the Control Unit bearing No. BCUAF08025 for
Polling Booth No.79 AV Gangaleri, for the date of poll
06.04.2021. The control unit was sealed and opened in the
presence of both the counsels. The serial number of the
Control Unit was displayed and verified by the Court. In
order to see the total number of votes, the CRC (close result
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E.P.No.9 of 2021clear) compartment was broken along with the blue and
green seal and on pressing the close button in the presence of
both the counsels it was seen that the Control Unit was
closed without closing the votes polled. Only if the votes are
closed, the result will be displayed. On pressing the close
button, the total number of votes polled was displayed as 657.
Ex.C14. The Control Unit bearing No. BCUEF88410 for
booth no.95 Balaguri Polling station for the date of polling
06.04.2021. The total number of candidates is displayed as
13. The serial no. of the Control Unit displayed was verified
by the Court. It displayed “Data Digit Error”. The machine
was switched off and switched on and the seal was broken in
the presence of both the counsels. The total number of votes
displayed is 716.
(iii) C.W.2 is the Returning Officer of the Krishnagiri Assembly
Constituency. In her cross examination, she would submit that she had
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not received any objections with reference to the nomination filed by
the 1st respondent, the distribution of money to voters, misuse of
official machinery and excess expenditure. She would further submit
that Ex.P7-letter dated 04.04.2021 does not contain an
acknowledgement of she having received it and she would add that
normally, when an objection is received, it is acknowledged. With
reference to the counting of the postal ballots, in her cross examination,
she would submit that she was present at the table when the counting of
postal ballots had commenced. She would further submit that each
ballot papers were scrutinized separately in the presence of the agents
of the candidates and that the reasons for rejection have been given to
all agents. She would also submit that an ARO of Gazetted rank has
explained the reasons of rejection and after the end of each round, the
signatures from the agents were obtained. She categorically denied the
statement that it was only after receiving the complaint from the DMK
party candidate, the reasons for rejection were affixed on the postal
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ballot. After each round, signatures were obtained from the agents
present for the postal ballots that were accepted and rejected. The
ballot papers were displayed to all the agents. She would explain that
the reason for classifying the certain postal ballots under the head
“others” was that it was provided in the format and further the reasons
for rejection in some cases did not fall within the reasons set out in this
format. The witness would further clarify that the mock votes were
not erased. However, the counting has been done on the basis of
VVPAT slips with the consent of the Election Observer and thereafter,
the excess votes were reduced. She would submit that the rejection was
done as per the instructions given in the Handbook of Returning Officer
and with the consent of the Election Observer. Even with reference to
the Polling Station No.95, the counting was done through VVPAT
slips. She would submit that the Election Observer was kept informed
and he had given his consent and affixed his signature in the round wise
tabulated sheet for both polling station Nos.79 and 95. She has deposed
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E.P.No.9 of 2021
that as per Rule 15.18.3 of the Handbook of the Returning Officer
issued by the Election Commission of India, in case where votes have
been cast in the EVM without erasing the mock poll votes, the VVPAT
slips are required to be counted at the end. While counting for Polling
Station Nos.79 and 95 was undertaken, as also the execution of
Ex.C17-series, neither the election petitioner nor his agents were
present. They have also not signed the documents. The entire
procedure has been videographed.
(d) Conclusion :
Before adverting to the pleadings, response and evidence, it
would be useful to extract the following provisions of the Hand Book
for the Returning Officer :
Rule 15.14 of the Hand Book for Returning Officer
deals with counting of postal ballot papers. Rule 15.14.1
reads as follows:
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E.P.No.9 of 2021“15.14.1 Under Rule 54A of the Conduct of
Elections Rules 1961, the counting of postal ballot
papers shall be started first at the RO’s table. Only
such Postal Ballot Papers shall be taken up for
counting which are received by the RO before the
hour fixed for commencement of counting. The
Returning Officer shall furnish the latest account
of the total number of postal ballot papers
(received from the facilitation centers and through
post) to the Observer at the time of commencement
of counting.”15.14.12 sets our further reasons for rejection which
are as follows:
15.Postal ballot paper will be rejected on the
following grounds: –
(a) If no vote is recorded thereon; or
(b) If votes are given on it in favour of more
than one candidate, or
(c) If it is a spurious ballot paper, or
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(d) If it has been so damaged or mutilated that
its identity as genuine ballot paper cannot be
established; or
(e) If it is not returned in the cover “B” sent
along with it to the elector by the Returning
Officer, or(1) If the mark indicating the vote is made in
such a way that it is doubtful to make out the
candidate to whom the vote has been given; or
(g) If it bears any mark or writing by which the
voter can be identified.
(i) The grievance of the petitioner is that the rejection of the
postal ballots has been done without following the Rules and thereafter,
the counting of the same has been done in the absence of the
petitioner’s agent, chief election agent. Further, the rejection has been
made on one ground which is not found in the Rules namely under the
“others”. As already stated, in the light of the judgments of the
Hon’ble Supreme Court mentioned supra, and also taking into account
the fact that the margin of victory appears to be very slender and the
total number of postal votes was 605, this Court had independently
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E.P.No.9 of 2021scrutinised the evidence that has been exploited before this Court with
the help of the officials.
(ii) A scrutiny of the postal ballots which have been rejected
under the head “others” indicates that those ballots were defective. For
example, in some cases, the serial numbers on the postal ballots did not
match, and in others, the declaration in Form 13A was defective.
Therefore, in such circumstances, the same was included under the
head ‘others’ as they would not come under the single category
provided in the format, but the defect fell under two or more categories.
Therefore, if the rejected votes were taken into consideration on the
basis of reasons, it would lead to an anomalous situation where one
vote could be treated as two or three. Therefore, categorizing them
under the head ‘others’ is a definite way of arriving at the correct tally
of votes. That apart, it is as per the ECI’s format. Further, even under
this head, the reasons for rejection fall within the grounds set out in
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Rule 54A of the Conduct of Election Rules, 1961, and the total number
of rejected votes tallies to 605. Accordingly, the rejection of the postal
ballots appears to be in order.
(iii) On a perusal of the video, it is seen that an Official is
showing a demo ballot paper at table No.2 and the same has been
explained to the Agents. The video would also show that the questions
being asked by the Agents. In Table No.3, it appears that some of the
votes are being re-checked. Table No.4 would show that each ballot
paper is being shown to the agents before it is put in the respective
boxes. Therefore, the rejection cannot be called into a question,
particularly, when the Returning Officer has followed the procedure
contemplated in the Hand Book.
(iv) In the EVM of Polling Station No.79, the mock polls have
not been rejected. The Officials of the BHEL who had come along
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with the election officials for scrutinizing the postal ballots have
explained to the Court that the symbols are recorded only in the
VVPAT and mock polls did not get registered into the VVPAT.
Therefore, the 50 mock votes can be easily ignored since the VVPAT
had only registered the actual votes. Therefore, the final result has not
been affected.
(v) Likewise, with reference to the Polling Station No.95 where
there was a malfunction as there was no display, the petitioner would
explain that the result of the same had not been closed after the polling.
Further, it would not affect the results since the results are recorded in
the VVPAT and the total votes polled remains unchanged. The
petitioner has not stated as to how the malfunction has affected the
results.
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(vi) A regards votes cast in booth Nos.79 and 95 have been
cross examined with VVPAT and is found to be in order. The
expansion of abbreviation VVPAT is ‘Voter Verifiable Paper Audit
Trail ‘. VVPAT is an electronic device that includes a direct recording
electronic voting system. DRE in short would assure voters that their
votes have been recorded as intended and as a means to detect fraud
and equipment malfunction. VVPAT is a means by which a manual
vote count can be conducted, if a re-count is necessary. Rule
56(D)(4)(b) of the C.E.Rules provided that where there is a discrepancy
between the votes displayed in on the control unit and counting of the
paper slips (VVPAT), result sheet in Form 20 has to be amended as per
the paper slips count.
(vii) Further after the mock poll, apart from resetting the EVMs,
the VVPAT slips for mock are destroyed. This assumes significance
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since the petitioner has only alleged that the EVMs had not been reset,
but does not whisper anything about the VVPAT.
(viii) After scrutinizing the postal ballots and the videograph, it is
seen that the allegations made by the petitioner that the postal ballots
had been rejected indiscriminately, that the agents were not kept
informed, and that the counting had taken place in the absence of the
agents, are all found incorrect. Therefore, the grounds raised by the
petitioner in this regard cannot be countenanced and this Issue No.7 is
answered against the petitioner. Further, the judgments relied upon
by the petitioner in this regard does not come to his aid.
ISSUE No.8 :
30. The Issue No.8 framed for consideration is :
“Whether the present election petition is barred by limitation
and latches?”
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E.P.No.9 of 2021Conclusion :
(i) The pleadings on either side would clearly show that the
nominations were called on 12.03.2021, the last date for filing the
nominations was 19.03.2021, date for scrutiny of nomination was
20.03.2021, the last date for withdrawal of candidature was
22.03.2021 and the date of poll was 06.04.2021. The election results
had been declared on 02.05.2021 and the election petition has been
filed on 30.06.2021, no doubt beyond the prescribed period of 45 days.
However, in the light of the order passed by the Hon’ble Supreme
Court in a miscellaneous petition No. 665 of 2021 in SMW(C) No.3 of
2020 dated 27.04.2021, the period of limitation can be extended. It has
been held as follows:
“We, therefore, restore the order dated 23rd March,
2020 and in continuation of the order dted 8th March, 2021
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E.P.No.9 of 2021direct that the period(s) of limitation, as prescribed under
any general or special laws in respect of all judicial or
quasi-judicial proceedings, whether condonable or not,
shall stand extended till further orders”.
(ii) Reliance may be placed in this regard to Section 81 of the
R.P.Act, which 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.
Explanation.—In this sub-section, “elector” means a
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person who was entitled to vote at the election to which
the election petition relates, whether he has voted at
such election or not.
(2)***
(3)Every election petition shall be accompanied by as
many copies thereof as there are respondents
mentioned in the petition and every such copy shall be
attested by the petitioner under his own signature to be
a true copy of the petition.
(iii) The 1st respondent would submit the election petition ought
to have presented within a period of 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 and dates of their election are
different, the later of those two dates. The 1st respondent would further
state, the State assembly election was conducted on 06.04.2021 and the
results were announced on 03.05.2021. Though the first respondent
would contend that the petition was filed on 30.06.2021, i.e., nearly 63
days after the announcement of the election results, however, in the
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result of the the above referred judgment of the Hon’ble Supreme
Court, the time stood automatically extended. Therefore, the petition is
filed well within the time. This Issue No.8 is answered in favour of
the petitioner.
ISSUE No.9 :
31. The Issue No.9 is :
Whether the present election petition is compliant of Section
81 of the Representation of People’s Act 1951 ?
Conclusion :
In the light of the answer given to issue No.8, it cannot be stated
that the election petition is not compliant with Section 81 of the R.P.
Act since by reason of the orders of the Hon’ble Supreme Court, the
limitation period has been extended and the election petition has been
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E.P.No.9 of 2021filed within the prescribed time. Therefore, Issue No.9 is answered in
favour of the petitioner.
ISSUE No.10:
32. As regards the 10th issue, namely, Whether the present
petition contains sufficient cause of action for this Hon’ble Court to
take cognizance and try the same, the petitioner has challenged the
election of the 1st respondent on various grounds and has given reasons
as to why the election being questioned. Therefore, this Court is of the
opinion that the election petition contains sufficient cause of action for
the Court to take cognizance of the petition and to try the same. This
Issue No.10 is answered in favour of the petitioner. However, Issue
Nos. 11, 12 and 13 are answered against the petitioner.
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SUMMATION :
33. In the light of the above discussions, Issue Nos.1 to 7, 11, 12
& 13 are answered against the petitioner and Issue Nos.8, 9 & 10 are
answered in favour of the petitioner. Accordingly, the Election
Petition is dismissed. No costs.
28.05.2025
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes / No
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E.P.No.9 of 2021P.T.ASHA.J.,
srn
E.L.P.No.9 of 2021
28.05.2025
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