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2015 Supreme(Mad) 3249
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K. RAVICHANDRABAABU, J.
R.S.Raja Kannappan - Petitioner
VS.
K.R.Periakaruppan & Ors. - Respondents
ELECTION PETITION No.11 of 2011
Decided On : 28.10.2015
For Petitioner: Mr. T.V. Ramanujam Senior Counsel for Mr. G. Saravanakumar
For Respondents: Mr. T.R. Rajagopalan for R1 Senior Counsel for Mr. K. Muthuramalingam
Headnote:
Representation of People Act - Section 83 and 123 - Conduct of Election Rules, 1961 - Rule 94(A) - Corrupt Practices – Election - Nomination and Voting - Form of affidavit to be filed with election petition - Election Commission - Tamil Nadu Assembly – Praying to declare election of Returned Candidate, first respondent Tiruppathur Assembly Constituency, Tamil Nadu, in election held (in which results were declared) as void; to order Re-poll for whole Tiruppathur Assembly Constituency or to inter alia order re-poll in above stated 39 Polling Stations and to pay costs - Petitioner contested as Official Candidate of the All India Anna Dravida Munnetra Kazhagam (A.I.A.D.M.K.) in "Two Leaves" symbol and first respondent, whose election is under challenge in this petition, contested as Official Candidate of Dravida Munnetra Kazhagam (D.M.K.) in "Rising Sun" - First respondent was Sitting Member of Assembly from Thiruppathur Constituency and he was Minister for Hindu Religious and Charitable Endowments Department in previous DMK Government at time of election - Returning Officer declared that first respondent secured 83,485 votes as against 81,901 votes said to have been secured by petitioner and consequently, declared first respondent as having been duly elected by a margin of 1,584 votes - Whether first respondent/Returned candidate indulged in corrupt practices as set out in Section 123 of Representation of People Act – Held, Court view, election petition cannot be sustained as the defect in Form-25 as well as verification of election petition have not been cured till final disposal of election petition – Court have already pointed out that requirement under Form 25 is that election petitioner has to specifically state as to what are corrupt practice - Such statement is totally absent in Form-25 affidavit filed by election petitioner in this case - Likewise, verification of pleadings in election petition was not made in accordance with above said Act and rules framed thereunder - Hence a curable defect, if not cured, undoubtedly becomes fatal to election petition if such defect pertains to mandatory requirement of law - Election petition cannot be sustained with improper verification of the pleadings as well as for non-disclosure with specification of the corrupt practice in Form-25 - Perusal of decision would show that total of votes polled as stated in Form-17C therein not matched with total number of votes as mentioned in Form-20 by which election was declared. It is not similar case herein nor any such pleading was made to that effect - Therefore, I find above decision is also not applicable to facts and circumstances of present case – Court hold election of first respondent/returned candidate cannot be declared as invalid and election petitioner is not entitled for any other relief - Election Petition is dismissed.
This election petition is filed praying to declare the election of the Returned Candidate, the first respondent herein from No.185, Tiruppathur Assembly Constituency, Tamil Nadu, in election held on 13.04.2011 (in which results were declared on 13.05.2011) as void; to order Re-poll for the whole of No.185, Tiruppathur Assembly Constituency or to inter alia order re-poll in the above stated 39 Polling Stations and to pay the costs.
2. The case of the election petitioner is as follows:
i) The Election Commission of India decided to hold General Elections to the Tamil Nadu Assembly and issued the necessary notifications and Election Schedule. The filing of Nomination commenced on 16.03.2011; last date for filing nomination was 26.03.2011; scrutiny of notimations was on 29.03.2011; date of election was fixed to 13.04.2011. Election to No.185, Thiruppathur Assembly Constituency in Tamil Nadu State, which is the subject matter of this election petition was scheduled to be held within the time table aforesaid. After scrutiny and withdrawals, the nomination papers of the petitioner and the respondents were accepted by the Returning Officer, Tmt.V.Alagumeenal. The petitioner contested as the Official Candidate of the All India Anna Dravida Munnetra Kazhagam (A.I.A.D.M.K.) in "Two Leaves" symbol and the first respondent, whose election is under challenge in this petition, contested as the Official Candidate of the Dravida Munnetra Kazhagam (D.M.K.) in "Rising Sun". The first respondent was the Sitting Member of the Assembly from Thiruppathur Constituency and he was the Minister for Hindu Religious and Charitable Endowments Department in the previous DMK Government at the time of election. The Returning Officer declared that the first respondent secured 83,485 votes as against 81,901 votes said to have been secured by the petitioner and consequently, declared the first respondent as having been duly elected by a margin of 1,584 votes. The first respondent managed to secure this victory by corrupt practices and by bringing undue influence on the District Election Officer and the Returning Officer in his capacity as the State Cabinet Minister and that the District Election Officer and the Returning Officer made ready a well designed ground for ensuring the victory of the first respondent by manipulating the Electronic Voting Machines (EVM). There were totally 279 Polling Stations in No.185, Tiruppathur Assembly Constituency.
ii) The duty of the Returning Officer is to keep the Electronic Voting Machine in safe custody under proper security and not to allow outsiders to enter the room where the E.V.Ms are kept. There was a long gap of one month from the date of poll to the date of counting and the same was used by the first respondent to manipulate the E.V.Ms.
iii) All the E.V.Ms. were brought to Alagappa Chettiar College of Engineering in Karaikudi and kept in the first floor without any security. On 12.5.2011, the petitioner's party men led by one Karuppiah caught a person with an E.V.M. in his possession entering the E.V.Ms. room. When the Returning Officer was informed the above fact, she came and managed to protect the intruder by giving lame excuses and escorted him in her car without handing him over to the police. Both of them gave conflicting versions regarding the entry with a E.V.M.
iv) On 13.05.2011, counting of votes began around 8.00 a.m. in the ground floor hall containing 14 tables. Despite the use of mobile phones by candidates and their agents in the counting hall was completely prohibited, an intruder was found using his mobile. He was planted inside the counting area by the first respondent with the connivance of the District Election Officer and the Returning Officer to monitor and manipulate the counting in favour of the first respondent. The first respondent came to rescue the intruder. Later, the intruder was removed from the area by the police and no F.I.R. for trespass was lodged. Thus, the above two incidents
