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2023 Supreme(Mad) 2075
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
S. Selva Mohandas Pandian – Appellant
Versus
S. Palani Nadar & Others – Respondents
Election Petition No. 2 of 2021 & O.A. No. 665 of 2021
Decided On : 05-07-2023
For the Petitioner:T.V. Ramanujam, Senior Counsel for B. Arvind Srevatsa, Advocate. For the Respondents:R1, V. Arun, R. Revathy, Advocates, R2 to R18, No Appearance.
Failure to comply with election counting procedures can materially affect election results, mandating re-verification of votes if discrepancies exist.
Headnote:(A) Representation of the People Act, 1951 - Sections 80, 80A, 81, 82, 83, 84, 98(b)(c), 100(1)(iii), 100(1)(d)(iv) and 101 - Election petition challenging the election results of Tenkasi Assembly Constituency for violating election laws - Petitioner requests recounting due to discrepancies in postal ballots and improper rejection of votes during counting - Court mandates re-verification of invalid votes where victory margin is less than the number of rejected votes. (Paras 1, 29, 35, 58)
(B) Election Procedure - Compliance with instructions in the Handbook for Returning Officers is crucial; failure to adhere to these can materially affect election results - Returning Officer stopped counting improperly and failed to re-verify postal ballots per statutory mandate. (Paras 10, 36, 51)
(C) Election Petition - The court asserts that discrepancies in vote counting must be addressed, with emphasis on enforcement of procedural integrity during election processes. (Paras 56, 60)
Facts of the case:
Petitioner lost the election by 370 votes and alleged irregularities in vote counting, including improper handling of postal ballots and failure to follow counting processes. (Paras 1-6)
Findings of Court:
The election petition partly allowed; recount of postal ballots directed due to violations affecting election integrity. (Paras 56, 59)
Issues: The court examined whether the Returning Officer violated the election laws, improperly rejected ballots, and if the discrepancies materially affected the election outcomes. (Paras 2, 5, 32)
Ratio Decidendi: Court concluded that statutory instructions had binding authority, and the Returning Officer's non-compliance impacted the election's validity. (Paras 10, 18, 19, 58)
Result: Election petition partly allowed; direction for reconsideration of postal ballots on account of voter irregularities during counting.
| Table of Content |
|---|
| 1. election petition details. (Para 1 , 2 , 3) |
| 2. claims of counting irregularities. (Para 4 , 5) |
| 3. legal merits of petition. (Para 9 , 10 , 11 , 12) |
| 4. binding nature of election commission rules. (Para 15 , 18) |
| 5. irregularities materially affecting election outcome. (Para 34 , 51) |
| 6. court's final directive on counting. (Para 56) |
JUDGMENT
(Prayer: Election Petition has been filed under Sections 80 ,80A,81,82,83,84,98(b)(c) r/w Section 100 ,100(1)(iii), 100(1)(d)(iv) and 101 of the Representation of the People Act, 1951 read with the Conduct of Election Rules, 1961 and the Madras High Court (Election Petitions) Rules, 1967, praying to:
(i)Declare the election of the Returned Candidate namely, Mr.S.Palani Nadar, the 1st respondent herein in No.222 Tenkasi Assembly Constituency to be void
(ii)Order re-verification and re-count of all votes polled by Postal Ballots in No.222 Tenkasi Assembly Constituency
(iii)Order re-count of all votes polled by Electronic Voting Machines covered under Counting Round Nos.28,29 and 30 in No.222 Tenkasi Assembly Constituency.
(iv)Declare the petitioner herein as the Returned Candidate for No.222, Tenkasi Assembly Constituency for the Tamil Nadu Assembly Elections, 2021.
(v)Direct the respondents to pay the cost of this Election Petition.)
1. The Election Petition is filed by the unsuccessful candidate Mr.Selva Mohandas Pandian, who contested from Tenkasi Assembly Constituency in the General Election held during the month of April 2021. He lost to the the first respondent by a margin of 370 votes.
2. The relief sought in the Election Petition are:-
(i) Declare the election of the Returned Candidate namely, Mr.S.Palani Nadar, the 1st respondent herein in No.222 Tenkasi Assembly Constituency to be void.
(ii) Order re-verification and re-count of all votes polled by Postal Ballots in No.222 Tenkasi Assembly Constituency.
(iii)Order re-count of all votes polled by Electronic Voting Machines covered under Counting Round Nos.28,29 and 30 in No.222, Tenkasi Assembly Constituency.
(iv)Declare the petitioner herein as the Returned Candidate for No.222, Tenkasi Assembly Constituency for the Tamil Nadu Assembly Elections, 2021.
(v) Direct the respondents to pay the cost of this Election Petition.
3. The reasons for seeking the above relief as found in the petition are capsulised below:-
(i)The votes polled by EVMs in the 408 Polling Stations for No.222, Tenkasi Assembly Constituency, were counted in 30 Rounds of Counting Centre. The Round-wise break up of votes polled by EVMs was uploaded on the website of the Election Commission of India. Till the counting of Round No.27 of EVM votes, the Returning Officer did not commence the counting of postal ballots. The petitioner''s Chief Election Agent, Mr.K.P.Kumar Pandian, raised an objection that the votes polled by postal ballots ought to be counted first, as per Rule 54-A of the Conduct of Elections Rules , 1961. At the completion of the Round No.27, the petitioner was leading by 2,918 votes.
(ii)At around 3.30 p.m., the Retuning Officer stopped the counting of EVM votes and directed the counting of votes polled by postal ballots. As per Rule 60, the counting process shall be continuous and should not be stopped in between without any reason. The Returning Officer in an arbitrary manner, did not take any action based on the objection raised by the Chief Election Agent, Mr.K.P.Kumar Pandian, of the petitioner and continued the counting of postal votes stopping the counting of EVM votes.
(iii)In the Statement of Postal Ballots, it is stated that the total number of voters under Postal Votes at No.222 Tenkasi Assembly Constituency is 3330. It is stated that 2530 postal votes were received up to 30.04.2021 and 47 votes were received on 01.05.
