IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on :16.06.2023 Pronounced on :05.07.2023 Coram:

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Election Petition No.2 of 2021 and O.A.No.665 of 2021 S.Selva Mohandas Pandian .. Petitioner /versus/

1.S.Palani Nadar

2.K.M.Udhayakumar

3.S.Chandrasegar 4.S.Sureshkumar

5.R.Selvakumar

6.R.Thirumalaimuthu

7.S.Mohamed

8.K.Mugundhan

9.R.Vincentraj

10.M.Jeganathan

11.J.Arokkiya Prabhu

12.Doctor S.Kauruppasamy

13.A.Palanikumar

14.P.Palanimurugan

15.A.Madasamy

16.R.Ramesh

17.M.Reegankumar

18.The Returning Officer, No.222, Tenkasi Assembly Constituency The Revenue Divisional Officer Tenkasi 627 811. .. Respondents 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 1^st 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.

For Petitioner :Mr.T.V.Ramanujam Senior Counsel for Mr.B.Arvind Srevatsa For Respondents :Mr.V.Arun for Mrs.R.Revathy for R1 R2 to R18- No appearance ------

O R D E R 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 1^st 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 st