Competent person to correct the defect is only Enumeration Officer and not Returning Officer.

The averments found in the election petition are as follows: The election for 13th Tamil Nadu State Assembly was notified on 13.4.2006, nominations had to be filed on or before 20.4.2006, the date of scrutiny of nominations was fixed to be on 21.4.2006, the last date for withdrawal of nomination was 24.4.2006 and the polling was held on 8.5.2006. For the Assembly Constituency of Tiruchirappalli-II, the petitioner filed nomination on 20.4.2006 with full address and necessary documents to prove his eligibility to contest the election as an independent candidate. He has also deposited Rs. 5,000/-towards the election deposit. Third respondent is the Returning Officer. The Returning Officer issued a proceedings in Form No. VI stating that the nomination paper will be taken up for scrutiny at 11.00 A.M. on 21.4.2006. The petitioner appeared through his counsel before the third respondent during scrutiny. As the name of the petitioner was not found tallying with that of the Electoral List, the Returning Officer has called for explanation from the petitioner, who also explained stating that the error found in voters list is that his mothers name is shown as his father, that error occurred at the time of preparation of voters list. Soon after the said publication, petitioner gave an application to correct the said error by Form No. VIII, which was also accepted by the appropriate authority on 22.3.2006 and issued acknowledgement therefor. Despite the said application of petitioner no correction of the said error was made in the electoral list. However, the petitioner presented before the Returning Officer the Ration Card, Passport, School Transfer Certificate, to show that his father name is Susainathan and mother name is Mariya Pushpam. Petitioner also produced voter list published in the year 2001, wherein his fathers name did tally. Petitioners mother name Mariya pushpam was printed above the petitioners name, which indicated her husband as Susainathan. However, the third respondent without considering the explanation offered by the petitioner has rejected his nomination on 21.4.2006. That is a non-speaking order, without application of mind, whereby the electoral right of the petitioner was curtailed. Even in the electoral identity card issued on 19.4.2006 same mistake crept in. Had the Form VIII presented by petitioner was duly considered, suitable correction would have been made and identity card would have been issued by describing his fathers name. Soon after the rejection by the Returning Officer of the nomination the petitioner issued a Fax message to second respondent for his intervention. But none responded. Therefore the petitioner filed a writ petition in W.P. No. 3661 of 2006 on 22.4.2006 under Article 226 of the Constitution before the Madurai Bench. Petitioner was directed to prefer election petition. The third respondent failed to apply Section 33(4) of the Representation of the People Act, 1950 while rejecting the nomination, his order was in contravention of Section 22 of the Representation of the People Act 1950. Therefore he prayed that the election of the 5th respondent, successful candidate is to be set aside, order re-poll by declaring the rejection of petitioners nomination as improper.

2. In the counter affidavit filed by the 5th respondent it is contended that the 5th respondent is the successful candidate who was in no way responsible for the rejection of petitioners nomination. Mere filing of Form VIII for correction without follow up action is not sufficient. Petitioner failed to make necessary correction in the electoral list within the prescribed time. The 5th respondent was elected with a huge margin of 16,300 votes during the elections held in May, 2006. The Returning Officer, third respondent is duty bound to follow the rule prescribed, while entertaining the nomination papers filed by the candidates. The petitioner has given his fathers name as Susainathan in the nomination. However, in th