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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. DHANAPALAN
S. Mathiarasan
Versus
K. Kalaimani & Others
Application No. 1441 of 2010 in Election Petition No. 6 of 2009
Decided On :Decided on : 26-07-2011
The High Court dismissed an application filed by the returned candidate under Order 6 Rule 16 C.P.C. read with Section 86 of the Representation of the People Act, 1951, seeking to reject and strike off the Election Petition filed by K. Kalaimani, the election petitioner in the Election Petition. The Court held that the nomination of the election petitioner was improperly rejected by the Returning Officer and, hence, the Election Petition has to be declared void.
Fact of the Case:
The election petitioner, K. Kalaimani, filed an Election Petition challenging the election of the returned candidate, alleging that his nomination was improperly rejected by the Returning Officer. The returned candidate filed an application under Order 6 Rule 16 C.P.C. read with Section 86 of the Representation of the People Act, 1951, seeking to reject and strike off the Election Petition.
Finding of the Court:
The High Court held that the nomination of the election petitioner was improperly rejected by the Returning Officer and, hence, the Election Petition has to be declared void. The Court found that the Returning Officer failed to exercise the mandatory requirement of verification of the nomination paper as contemplated under Section 33(4) of the Act and did not allow time to the petitioner to rebut any objection of the Returning Officer as per the proviso to Section 36(5) of the Act. The Court also found that the Election Commission arbitrarily exercised its power on the question of rescrutiny by selectively conducting in respect of Bargur and Srivaikundam constituencies on the representation of the rejected candidate, but failed to do it in the case of rejection of the petitioner's nomination. The Court further found that the Returning Officer ignored and failed to act as per Clause 16.3 of Chapter V of the instructions of the Returning Officer's Handbook, Chapter 6 of the handbook of instructions, and did not provide the order of rejection of nomination paper.
Issues: Whether the nomination of the election petitioner was improperly rejected by the Returning Officer.
Ratio Decidendi: The High Court held that the nomination of the election petitioner was improperly rejected by the Returning Officer because the Returning Officer failed to exercise the mandatory requirement of verification of the nomination paper as contemplated under Section 33(4) of the Act and did not allow time to the petitioner to rebut any objection of the Returning Officer as per the proviso to Section 36(5) of the Act. The Court also found that the Election Commission arbitrarily exercised its power on the question of rescrutiny by selectively conducting in respect of Bargur and Srivaikundam constituencies on the representation of the rejected candidate, but failed to do it in the case of rejection of the petitioner's nomination. The Court further found that the Returning Officer ignored and failed to act as per Clause 16.3 of Chapter V of the instructions of the Returning Officer's Handbook, Chapter 6 of the handbook of instructions, and did not provide the order of rejection of nomination paper.
Final Decision: The High Court dismissed the application filed by the returned candidate under Order 6 Rule 16 C.P.C. read with Section 86 of the Representation of the People Act, 1951, seeking to reject and strike off the Election Petition filed by K. Kalaimani, the election petitioner in the Election Petition.
Per V. DHANAPALAN, J.
1. This application is filed under Order 6 Rule 16 C.P.C. read with Section 86 of the Representation of the People Act, 1951, praying to reject and strike off the Election Petition filed by K. Kalaimani, the election petitioner in the Election Petition.
2. Election Petition No. 6 of 2009 has been filed to declare that the rejection of the election petitioner‘s nomination filed for 197, Ilayangudi Assembly Constituency-Tamil Nadu, by the Returning Officer is improper, illegal, void and contrary to the provisions of the , 1951, in short, “the Act”, and the Returning Officer‘s instructions 2009 issued by the Election Commission of India and consequently to set aside the entire election process including the election of the first respondent as returned candidate from 197, Ilayangudi Assembly Constituency.
3. Facts:
3.1. According to the applicant, poll schedule for the bye-election with respect to 197, Ilayangudi Assembly Constituency was notified on 16.7.2009. The first respondent/election petitioner in paragraph No. 1 could state that the following schedule was fixed for the poll:
(a) Date of commencement for filing nomination – 22.7.2009
(b) Last date for filing nomination – 28.7.2009
(c) Scrutiny of nomination – 30.7.2009
d) Last date for withdrawal of nomination – 1.8.2009
(e) Date of election – 18.8.2009
(f) Date of counting of votes and declaration of result – 21.8.2009
3.2. Thus, between the commencement of filing of nomination and the last date for filing nomination there was at least seven clear days to prepare and file the nomination. The petitioner claims that he has filed his nomination on 27.7.2009 before the Returning Officer namely the 12th respondent herein and in the Election Petition. In fact, the election petitioner had enclosed document No. 2 in the list of documents along with the election petition. The same is the poll schedule issued by the Election Commission of India. Thus, it may be seen that the election petitioner is fully aware about the schedule to bye-poll to be conducted and more about the date of commencement and the date of closure of the nomination also. The election petitioner is in the habit of contesting in elections irrespective of results. He had earlier contested in Parliament election held in May 2009 to elect 15th Lok Sabha and had secured just one thousand votes or about out of twelve lakh votes. The petitioner is also well versed in shifting himself to various political parties and he was earlier in Rashtriya Swayam Sevak Sangh, which is part of Bharathiya Janatha Party. When the earlier Ilayangudi M.L.A. joined DMK Party, this election petitioner also joined DMK Party. When he had left the party, this election petitioner also left the party. Thereafter, as an independent candidate, he had contested in the said Parliamentary election. After gaining all such experience he had filed this highly defective nomination in the Bye-poll. Thus, the petitioner has got good knowledge in election matters and has got rich experience. He has got required experience in contesting elections.
3.3. With the above background, the election petitioner has filed his nomination on 27.7.2009. Thus, on the 6th day after the start of filing of nominations he had every time in the world to prepare and present proper nomination that is capable of being acceptable. The petitioner‘s party though claim to be a registered party is not a recognised political party within the meaning of the Rules of the Election Commission of India. Hence, the question of allotment of reserved symbol or issuance of ‘A‘ form or ‘B‘ form does not arise.
3.4. The election petitioner, in para-5, had indicated the names of ten voters in the said Constituency, whom the petitioner claims that they have proposed him as a candidate. The petitioner has not filed any affidavit from those proposers nor indicated any genuineness about they having proposed the nomination of the election petitioner. According to
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