Madras High Court
Thol. Thirumavalavan vs N.Murugumaran on 7 February, 2020
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
ELP.No.8 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 21.01.2020
Pronounced on : 07.02.2020
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
Election Petition No.8 of 2016
Thol. Thirumavalavan ... Petitioner
-Vs-
1.N.Murugumaran
2.S.Kalaivanan
3.S.P.Saravanan
4.Dr.K.I.Manirathinem
5.Anbu.Sozhan
6.E.Jayasri
7.K.Anbalagan
8.T.Thirumavalavan
9.R.Ravichandran
10.The Returning Officer,
159, Kattumannarkoil (SC) Assembly Constituency and
Asst. Commissioner (Excise) Cuddalore.
...Respondents
R10 Given up – amendment
carried out as per order dated
28.03.2018 made in O.A.No.333
of 2017 in ELP.No.8 of 2016.
http://www.judis.nic.in
1/130
ELP.No.8 of 2016
Prayer:- Election Petition filed under Sections 64, 81, 100(1)(d)(iii),
100(1)(d)(iv), 101, 129 and 134 of the Representation of the People
Act, 1951, read with Rule 2 of the Madras High Court (Election
Petitions Rules, 1967, seeking the following reliefs:
(a). Set aside the election of the 1st respondent as the
successfully returned candidate for the 159-Kattumannarkovil (SC)
Assembly Constituency on 19.05.2016; and
(b). Pass such further or other order or orders as this
Court may deem fit and proper in the circumstances of the case and
thereby render justice.
For Petitioner : Mr.K.Balakrishnan, Mr.D.Ferdinand
for M/s.B.F.S.Legal
For R1 : Mr.T.V.Ramanujun, Senior Advocate,
assisted by Mr.C.Jagadish,
for Mr.S.Senthil and N.C.Ashok kumar
ORDER
The Election Petition has been filed by the petitioner, Thol.Thirumavalavan, under Sections 64, 81, 100(1)(d)(iii), 100(1)(d)(iv), 101, 129 and 134 of the Representation of the People Act, 1951, read with Rule 2 of the Madras High Court (Election Petitions) Rules, 1967, seeking the following reliefs:
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(a). Set aside the election of the 1st respondent as the successfully returned candidate for the 159-Kattumannarkovil (SC) Assembly Constituency on 19.05.2016; and
(b). Pass such further or other order or orders as this Court may deem fit and proper in the circumstances of the case and thereby render justice.
The Petition:-
2. In the petition, there were originally 10 respondents. The 1 st to 9th respondents and the petitioner were the contesting candidates for the State Assembly Elections held on 16.05.2016 for the 159-
Kattumannarkovil (SC) Assembly Constituency. The 10th respondent was the Returning Officer of the Constituency. He was functioning as Assistant Commissioner (Excise) Cuddalore. Even before the trail commenced, in the Election Petition, O.A.Nos.333 of 2017 and 304 of 2017 were filed and quite apart from striking off several paragraphs in the Election Petition, the 10th respondent was also given up by the petitioner. This Court had directed amendment by order dated 28.03.2018, with respect to the 10th respondent and by order dated 16.04.2018 with respect to striking off paragraphs 6, 7, 10 and 24.
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3. In the Election Petition, the allegations raised relate to the 1st respondent alone and there is not even a whisper regarding the 2nd to 9th respondents. The 1st respondent alone contested this Election Petition. In the Election Petition, it had been stated that the petitioner is the President of the Political Party called Viduthalai Chiruthaigal Katchi (VCK). He was also a Member of Parliament in the 15th Lok Sabha having been elected from the Chidambaram Constituency. He had contested in the 15th Tamil Nadu State Assembly Elections, 2016 from the 159-Kattumannarkovil (SC) Assembly Constituency. The Notification for the Elections was issued by the Election Commission of India on 04.03.2016. The following was the schedule :
Date of Notification 04.03.2016
Last date for filing nominations 29.04.2016
Scrutiny of nominations 30.04.2016
Last date for withdrawal of nominations 02.05.2016
Publication of list of candidates 02.05.2016
Polling Date 16.05.2016
Counting Date 19.05.2016
4. The petitioner had filed his nomination papers on
27.04.2016 and also paid the Security Deposit amount of Rs.5,000/- (Rupees Five Thousand only). He had also appointed / nominated http://www.judis.nic.in 4/130 ELP.No.8 of 2016 M.Dhanakodi as his Chief Election Agent. The petitioner had contested under the 'Ring' symbol which had been allotted to the VCK party.
5. The 1st respondent was fielded as a candidate by the All India Anna Dravida Munnetra Kazhagam (AIADMK) Party. The petitioner in paragraph No.9 of the petition claimed that there were several instances of money distributions by the 1st respondent to the voters. He also claimed that neither the 10th respondent nor his Officials took any action to implement the guidelines and directives of the Election Commission of India. He claimed that the incidents of such breaches were regularly communicated to the concerned Officials, but to no avail.
6. The petitioner further stated in paragraph No.11 of the petition that, without properly considering the objections and without paying heed to his responsibilities and obligations, the 10th respondent continued polling by using a faulty EVM No.L14732. It is claimed that the agent of the petitioner tried to reason out with the 10th respondent that since the machine was faulty, the recording of the votes, statistics and the result would not be accurate. It is further claimed in the petition that the total number of votes polled http://www.judis.nic.in 5/130 ELP.No.8 of 2016 in EVM.No.L14732 was 831.
7. The petitioner further stated in paragraph No.12 of the petition, that on the date of counting of the votes, namely 19.05.2016, when the postal ballots was taken up for counting, the 10th respondent had rejected a total of 102 votes, of which 1 (one) vote was rejected for the reason 'No Marking' and 101 (one hundred and one) postal votes were rejected for the reason 'Voter Unidentified'. He claimed that these postal ballots were rejected on a misplaced interpretation of the Representation of the People Act, 1951 and the Conduct of Election Rules, 1961 and also the instructions in the Handbook for Returning Officers, 2014, published by the Election Commission of India.
8. The petitioner further stated in paragraph No.13 of the petition, that his election agent questioned the 10th respondent regarding the rejection of the 101 postal votes, but the 10th respondent did not give any reasons. He further claimed that his Chief Election Agent, M.Dhanakodi immediately sent a representation on the same day, 19.05.2016 to the 10th respondent requesting that the results should not be declared as there was a discrepancy in the rejection of the postal votes. http://www.judis.nic.in 6/130 ELP.No.8 of 2016
9. The petitioner further stated in paragraph No.14 of the petition that the 10th respondent, had proceeded with the counting of the votes polled with the EVM. The petitioner claims that he presumes that this was an attempt to favour and secure the victory of the 1st respondent. It is further claimed by him that his election agent, M.Dhanakodi was not allowed to clearly witness the counting and was not intimated of the results of the votes polled by the petitioner and other candidates after completion of counting of each round. The petitioner claims that the video footage would confirm this statement. He further stated that M.Dhanakodi lodged another written protest to the 10th respondent on 19.05.2016, requesting that the results should not be declared owing to discrepancies and irregularities. He further claimed that his election agents were ill- treated by the 10th respondent.
10. In paragraph No.15 of the petition, he stated that contrary to the rules, the results of each round of counting were not declared immediately. Further, the Officials on election duty did not respond to the queries of the petitioner's election agent. He claimed that the results of the 1st round was declared only when the counting of the 3rd round commenced.
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11. The petitioner further claimed that during the 6th round of counting, EVM No.L14732 from booth No.81, Kaliyamalai Village, again developed technical issues and consequently, the votes polled were not displayed. He stated that only during the counting of the 6th round were the results up to the 5th round were declared. He claimed that there was utter chaos but the counting for the subsequent rounds commenced, even though the EVM No.L14732 from booth No.81 was not set right. The petitioner stated that the Officials refused to heed the request of his counting agent not to display the results till the EVM was repaired.
12. He further stated that, the 10 respondent proceeded with the counting of the 7th to 13th round even without rectifying the faulty EVM and without declaring the results of the previous rounds. Further, only when the 13th round counting was underway, were the results of the 7th to 12th rounds declared together. He further claimed that the election agents of all the candidates were asked to move out of their enclosures in the counting area, since the Engineer had to repair the faulty EVM No.L14732. The petitioner has stated that he suspects that there was every possibility of some foul play or manipulation occurring during that http://www.judis.nic.in 8/130 ELP.No.8 of 2016 period, since all the election agents were directed to leave the counting area. He further claimed that his suspicion was confirmed by the fact that the results of the 7th to 12th rounds were declared altogether. The petitioner further claimed that the 10th respondent had advance notice of the fact that the results of the 7th to 12th rounds indicated that the margin of difference between the 1st respondent and the petitioner was only 1968 votes and the overall lead of the 1st respondent was only 2053 votes. He stated that with a view to manipulate the results in favour of the 1st respondent, his agents were asked to go out of the counting station.
13. The petitioner further stated that the agents who were waiting outside the counting station were then informed by the Election Observer that the Engineer had found that the EVM No.L14732 could not be repaired and therefore, the results could not be displayed on the screen. He claimed that the 10th respondent unilaterally decided to consider the paper trail from the EVM. The petitioner claims that the 10th respondent had deliberately sent all the agents out of the counting station on the alleged reason to repair the EVM No.L14732, but that the actual reason was to gather the trend of the votes polled in the 7th to 12th rounds. He stated that he was declared defeated only by 87 votes. http://www.judis.nic.in 9/130 ELP.No.8 of 2016
14. The petitioner stated that the paper trail of the faulty EVM.No.L14732 should not have been considered as the EVM had developed technical snag even on the polling date. He stated that there was no mechanism to verify the paper trail. He again claimed that the 10th respondent had failed to consider the representation given by the agent of the petitioner. The petitioner stated that a further representation was made by M.Dhanakodi to stop the counting process. The 10th respondent refused to accede to the request. The petitioner stated that the signatures of the election agents were not taken while declaring the election results.
15. The petitioner had polled 48,363 votes and since the difference in the margin was 87 votes which was less than the number of the postal votes (1119 postal votes), the 10th respondent was mandated to reverify the postal votes including the ballots rejected as invalid and examine whether the results tallied. He claimed that the 10th respondent did not fulfill this mandatory obligation, but hurriedly declared the result of the 1st respondent.
16. The petitioner claimed that, had the 10th respondent properly re-verified the postal votes and ordered re-polling in booth http://www.judis.nic.in 10/130 ELP.No.8 of 2016 No.81 where the EVM No.L14732 malfunctioned, the result would have been in favour of the petitioner. However, the 10th respondent ignored his statutory duties.
17. The petitioner claimed that the irregularities and violations committed by the 1st respondent, and by the Officials on election duty and more particularly, by the 10th respondent had materially affected the outcome of the election for the 159- Kattumannarkovil (SC) Assembly Constituency and the election ought to be set aside. The petitioner claimed that he had sought the video recordings of the polling station and also the counting by letter dated 27.06.2016.
18. The petitioner further claimed that the 10th respondent deliberately ignored fair process and had abused his power. He had further vitiated the sanctity of the election process. The 10th respondent also remained a mute spectator to the irregularities and failed to take any action on the representation of the petitioner. The petitioner claimed that his chief election agent, M.Dhanakodi and several other persons including Pavarasu, Arutchelvan, Thamaraichelvan, Pala Aravali, Karuppusamy, Premchandra Singh, Manavalan, Rajamanickam, Ilanthamizhan, Moovendhan, http://www.judis.nic.in 11/130 ELP.No.8 of 2016 Kripashanker, Prabhu, Ramalingam and Jayakumar were personally present in booth No.81, Kaliyamalai Village on 16.05.2016 and again at the counting centre on 19.05.2016. He stated that the result of the election, that the 1st respondent was successful, was the result of a faulty EVM which was used at booth No. 81, Kaliyamalai Village. Further, the counting agent was asked to leave counting centre and the results of the 7th to 12th rounds were declared at one attempt. The petitioner therefore, prayed that the election of the 1st respondent should be set aside. The Counter:
19. A counter affidavit was filed by the 1st respondent, N.Murugumaran, the successful candidate for 159- Kattumannarkovil (SC) Assembly Constituency in the elections held on 16.05.2016. The counting was held on 19.05.2016. The 1st respondent stated that the election petition contains only vague allegations without any basis. The allegation that since, the 1st respondent was fielded by the All India Anna Dravida Munnetra Kazhagam party, the Police and the Election Officials turned a blind eyes to alleged lapses was specifically denied.
20. The further allegation in paragraph No.9 that there were http://www.judis.nic.in 12/130 ELP.No.8 of 2016 instances of the 1st respondent distributing money was also specifically denied. The other allegation that there was use of man power and muscle power was also denied. The allegations against the Election Commission of India regarding breach of election Code of Conduct Rules were denied as false and devoid of particulars.
21. The allegations in paragraph 11 of the petition that the 10th respondent directed continuation of polling using a faulty EVM No.L14732 were specifically denied. It was pointed out that neither the election petitioner nor his election agent had stated that the said EVM was faulty. It was stated that the total number of votes in booth No.81, Kaliyamalai Village was 1009 and the total votes polled were 831 and out of the 831 votes, the election petitioner had secured 270 votes, and the 1st respondent had secured 267 votes and the 5th respondent, Anbu.Sozhan had secured 229 votes.
22. It was further stated that when EVM No.L17432 was taken up for counting in the 6th round, the Counting Officer was not able to operate the machine. This was immediately informed to the Constituency Election Officer who in turn referred it to the Election Observer. The Election Observer directed the Constituency Election Officer, to refer to the handbook and inform the ELCOT Engineer http://www.judis.nic.in 13/130 ELP.No.8 of 2016 appointed by the Government for the District. Accordingly, the Constituency Election Officer informed the ELCOT Engineer. He arrived at the counting hall and switched on the EVM and there was display of the votes polled. It was therefore stated that there was no fault in the EVM. It was stated that the election petitioner was not present in the counting hall. His agent M.Dhanakodi alone was present. The allegations in paragraph No.11 of the petition were all denied. The allegations in paragraph No.12 were also denied. It was stated that on 19.05.2016, when the postal ballots were taken up for counting, the election agent of the petitioner had raised objections that the postal ballots were without attestation and should not be taken up for counting. They were then rejected by the 10th respondent.
23. With respect to the allegations in paragraph No.13 of the election petition, it was stated that the counting agent M.Dhanakodi who was present did not raise any objection. The further allegation that the reasons for rejection of the postal ballots were not informed, was also denied. It was stated that 101 postal ballots were rejected for want of attestation and 1 postal ballot was rejected since there was no marking. With respect to the allegations in paragraph No.15 of the election petition, it was stated http://www.judis.nic.in 14/130 ELP.No.8 of 2016 that the results were announced for each round and there was no violation of any statutory rules or norms. The allegations in paragraph No.16 of the election petition were also denied. It was stated that the EVM was found to be in order by the ELCOT Engineer appointed by the Government. The allegation that there was utter chaos in the counting booth was denied. It was again reiterated that the results for each round were declared at the end of counting of each round. It was specifically denied that the EVM No.L14732 was faulty. It was also specifically denied that results for the 7th to 12th rounds were declared at one go during the counting of the 13th round. It was stated that the petitioner had not made out any grounds under Sections 64, 81, 100(1)(d)(iii), 100(1)(d)(iv), 101, 129 and 134 of the Representation of the People Act, 1951. It was stated that the allegations in the Election Petition are vague and general in nature and do not disclose any cause of action. It was also stated that the verification in the Election Petition was contrary to the provisions of the Act and the documents filed along with the Election Petition do not give rise to any cause of action for setting aside the election of the 1st respondent. It was therefore prayed that the Election Petition should be dismissed. http://www.judis.nic.in 15/130 ELP.No.8 of 2016 The Issues:
24. On the basis of the pleadings, the following issues were framed for consideration:
“i). Whether the election petition contains statement of material facts and full particulars within the meaning of Section 83 of the Representation of the People Act, 1951?
ii) Whether the election of the 1st respondent is liable to be set aside in view of the rejection of the 101 postal votes by the Returning Officer and whether such rejection was in conformity or in contravention to the Election Counting Rules?
iii). Whether there were any technical problems/error with EVM No.L14732 in booth No.81 in Kaliyamalai Village within the 159- Kattumannarkovil (SC) Constituency?
iv). Whether proceeding with the counting of other EVMs and declaring the result was proper http://www.judis.nic.in 16/130 ELP.No.8 of 2016 and in conformity with Election Counting Rules?
v). Whether the entire sequence of the counting of overall votes took place in proper manner?
vi). To what reliefs are the parties entitled to?” The Trial:
25. Both the parties were invited to adduce oral and documentary evidence. The petitioner examined himself as PW-1.
He also examined his Chief Election Agent, M.Dhanakodi as PW-2 and another Chief Election Agent, B.Thamaraiselvam as PW-3. The Returning Officer, R.Muthukumaraswamy was examined as CW-1. The 1st respondent did not examine any witness. On the side of the petitioner Exs.P1 to P5 were marked . Ex.P1 is the xerox copy of the letter addressed by the petitioner to the Election Commission of India and to the Returning Officer, 159-Kattumannarkovil (SC) Assembly Constituency dated 27.06.2016, seeking copies of the video recordings in respect of 159-Kattumannarkovil (SC) Assembly Constituency on the date of the polling, 16.05.2016 and on the date of counting / declaration of results, 19.05.2016. Ex.P2 dated 19.05.2016, is the xerox copy of the letter given by PW-2, http://www.judis.nic.in 17/130 ELP.No.8 of 2016 M.Dhanakodi to the 10th respondent, Returning Officer, CW-1 requesting postponement of the declaration of the election results on the ground that Form-20 was not provided at the completion of each round of counting. Ex.P3 dated 19.05.2016 is yet another xerox copy of letter addressed by PW-2, M.Dhanakodi to the Returning Officer, CW-1, stating that the EVM should be kept separately and under custody. Ex.P4 is also yet another xerox copy of letter given by PW-2, Dhanakodi dated 19.05.2016 to the Returning Officer, CW-1, of 159-Kattumannarkovil (SC) Assembly Constituency, calling for withholding the declaration of results. Ex.P5 is a xerox copy of the letter dated 19.05.2016 given by the Returning Officer, CW-1 to PW-2, M.Dhanakodi, rejecting the representation given by PW-2 on the ground that 102 postal ballots were not attested and 1 postal ballot did not find any mark. It was also stated that the representation was also rejected because PW-2, M.Dhanakodi, was in the very place where the postal ballots were counted.
26. The Returning Officer was examined as CW-1. He was examined on the basis of the application filed by the petitioner in O.A.No.927 of 2019. In the petition filed to summon the said Returning Officer, the only purpose mentioned was that he should http://www.judis.nic.in 18/130 ELP.No.8 of 2016 depose as a witness. There was no direction to summon documents.
27. On conclusion of trial and arguments the matter was originally reserved for judgment on 18.12.2018. This Court had, directed the matter to be listed once again holding that pronouncement of judgment without perusing the 102 postal ballot which were rejected would not be fair and therefore, the Registry was directed to issue summon to CW-1, R.Muthukumaraswamy. A further direction was issued to the present Returning Officer to produce the 102 postal ballots for verification by the Court. Accordingly, 102 postal ballots were produced on 21.01.2020 and they were perused by the Court, in the presence of the learned counsel for the petitioner and the learned Senior Counsel for the 1st respondent in open Court. It must be pointed out that the petitioner was also present in Court on that day. After examining the rejected postal ballots, the case was again reserved for judgment on 21.01.2020.
The Evidence:
28. PW-1, the Election Petitioner, Thiru.Thol.Thirumavalavan in his Chief Examination stated that on the date of polling, 16.05.2016, he received information that there was malfunctioning http://www.judis.nic.in 19/130 ELP.No.8 of 2016 in the EVM in booth No.81, Kaliyamalai Village and that the voting continued even without the repairing of the EVM. He further stated that he learnt that a local repair person was engaged to try to rectify the EVM. He claimed that there was no authorized Engineer from the Election Commission to repair the machine. This statement was objected by the learned Senior Counsel for the 1st respondent on the ground that it was not pleaded in the election petition.
29. The witness further claimed that he had given a complaint to the Election Officer. He however, did not have a copy of the complaint. He claimed that voting took place even though the EVM was malfunctioning. The witness further stated that even on 19.05.2016, again, the said EVM malfunctioned and the votes could not be properly counted in the 6th round. He further stated that he was so informed over telephone by his Chief Election Agent, M.Dhanakodi, PW-2. The witness stated that he had given instructions to PW-2, M.Dhanakodi, to give a complaint. A complaint was also given on 19.05.2016. He also stated that the Returning Officer had acknowledged the complaint. He further stated that though the result of each round must be declared before the counting begins for the next round, the results of the 6th, 7th, 8th, 9th,10th,11th and 12th rounds were not immediately announced and http://www.judis.nic.in 20/130 ELP.No.8 of 2016 they were announced together along with the announcement of the 13th round. He stated that this procedure was illegal and against rules. He further stated that when his agents protested, the Police chased them away. However, he was not sure about the names of the agents who were chased out.
30. With respect to the 1 postal vote which was rejected because the mark was not proper and the 101 votes which were rejected on the ground the voters were not properly identified, he stated that his agents had protested at such rejection and had requested the Returning Officer to count the 101 postal votes also.
He also stated that a further complaint was given by his agent M.Dhanakodi on the same day 19.05.2016. A reply was also given by the Returning Officer, CW-1, R.Muthukumaraswamy, in which he had stated the reasons for the rejection of the votes. The witness specifically stated that the Returning Officer did not follow instructions in the the handbook given by the Election Commission of India relating to the guidelines for counting of the votes. He also stated that he had been seriously prejudiced, in view of the actions / inactions of the Returning Officer. He stated that he had given a complaint on 27.06.2016, to the Election Commission of India and to the Returning Officer. This document was marked as Ex.P1. He http://www.judis.nic.in 21/130 ELP.No.8 of 2016 claimed that since, the EVM in booth No.81, Kaliyamalai Village malfunctioned during the date of polling and again during the date of counting, and since 102 postal votes were not counted, the election in 159, Kattumannarkoil (SC) Assembly Constituency should be set aside. He also stated that the copy of the video recordings, which he had sought with respect to the polling on 16.05.2016 and with respect to the counting on 19.05.2016, had not been given to him.
31. The witness was elaborately cross-examined. During his cross examination, he stated that he did not remember the name of the Polling Officer in booth No.81, Kaliyamalai Village, though he had appointed a polling agent with ID card for each booth. He stated that Ganeshamoorthy, who was incharge of the constituency had informed him over telephone about the malfunctioning of the EVM in booth No.81. He however stated that this specific fact, mentioning the name Ganeshamoorthy, had not been stated in the Election Petition. He also stated that he had not mentioned in the election petition that a local repair person had been engaged to try to rectify the EVM. He also stated that Ganeshamoorthy had informed him that there was video coverage in the polling booth No.81, Kaliyamalai Village on the polling date. He denied the http://www.judis.nic.in 22/130 ELP.No.8 of 2016 suggestion that on the date of counting an Engineer from ELCOT had come and when the result button was pressed, the votes polled by each candidate were displayed. He also denied the suggestion that the results were announced at the end of the counting of each round. He also denied the suggestion that the Police did not chase away his agents during the time of counting. Though he stated that the Returning Officer had rejected the 101 postal ballot papers on the ground that there was no declaration form and had rejected 1 postal ballot paper on the ground that there was no marking on it, he stated that only on opening the cover containing the postal ballot, would one know if there was a declaration or attestation. He denied the suggestion that the cover containing the postal ballot cannot be opened if there is no declaration or attestation to identify the voter. He also stated that there was no prayer in the Election Petition for recounting of the votes, but stated that the relief he sought was to set aside the election.
32. PW-2, M. Dhanakodi was the Chief Election Agent of the Election Petitioner. He claimed in his chief examination that he visited booth No.81 in Kaliyamalai Village at around 9.00 a.m. He stated that at that time the polling was not going on. When he enquired from his party agent, the agent told him that he was not http://www.judis.nic.in 23/130 ELP.No.8 of 2016 aware of the reason why the polling was not going on. He further stated that the party agent informed him that the Polling Officer had informed that since there was some malfunction in the EVM, polling was stopped. When the witness enquired with the Polling Officer, it was informed that EVM No.L14732 was malfunctioning. The witness stated that he had told the Polling Officer that the EVM has to be replaced and the polling should be continued. He then proceeded to inspect the other polling booths. He then claimed that the Polling Officer did not heed to the said request and the polling continued after two hours. He further stated that on 19.05.2016 during the counting process, he was present as the Chief Election Agent. He was present at the place where the postal ballots were being counted. He stated that there were technical problems when EVM.No.L14732 pertaining to booth No.81, Kaliyamalai Village was taken up for counting. He was then informed by the Election Officer that an Engineer would be summoned to rectify the problem. At that point of time, the results of 6 successive rounds were displayed on the black board against each candidate. He then stated that subsequently, 11 rounds of counting were completed but the results of each successive round were not displayed on the black board. He then gave a letter to the Election Officer. This was marked as Ex.P2. The admissibility of the said document was questioned on the http://www.judis.nic.in 24/130 ELP.No.8 of 2016 ground that it was a xerox copy and that no acknowledgment was produced. The witness stated that the Election Officer received a phone call and the District Superintendent of Police entered the counting booth and there were some arguments and a little while later, the results for 2 successive rounds were displayed on the black board. But till the end, Form 20, though requested by him, was not given. He then went to the place where postal ballots were being counted. He claimed that the postal ballots were not properly counted. Out of 102 postal ballots, 1 was rejected and 101 were not accepted. He then gave another letter claiming that the 101 postal ballots should be counted. This letter was marked as Ex.P3 and its admissibility was also objected by the learned counsel for the 1st respondent. He stated that during the counting of the 18 th round, the AIADMK candidate Thiru. Murugamaran entered the counting booth. Thereafter, the District Superintendent of Police also entered the counting booth and the Election Officer informed that he was about to announce the results. The witness claimed he had objected to the same and gave another letter Ex.P4 to the Election Officer. The admissibility of this letter was questioned by the learned counsel for the 1st respondent, since it was a xerox copy. The witness claimed that he requested the Election Officer to count the 101 rejected postal ballots. He then stated that he over heard http://www.judis.nic.in 25/130 ELP.No.8 of 2016 the Returning Officer and the returned candidate Thiru.Murugamaran speaking that Thiru.Murugamaran had won the election by a margin of 87 votes. He stated that he kept on requesting the Returning Officer to recount the postal ballots. At that time about 30 policemen entered the booth and chased out the party agents. He stated that he was forced to sit, surrounded by 4 to 5 policemen and thereafter, the result was announced even while the returned candidate was in the counting booth. He stated that the declared results were not correct.
33. During cross examination, he stated that before the polling commenced, a mock poll was conducted in each of the polling booths to verify whether the ballot machine and control unit were functioning properly. He also stated that the EVM would not be used for balloting unless it is functioning. He stated that he did not remember the name of the Polling Agent for booth No.81, Kaliyamalai Village. He stated that he had not given any complaint in writing to the Returning Officer on 16.05.2016 with respect to the alleged malfunctioning of the EVM in booth No.81. He stated that in Exs.P2, P3 and P4 letters, he had not stated that EVM.No.L14732 was not functioning and that there was no display about the number of votes having been polled. He also stated that http://www.judis.nic.in 26/130 ELP.No.8 of 2016 in Exs.P2, P3 and P4, he had not stated that the results for rounds 7 to 12 were announced together. He also stated that he had not requested for repolling in booth No.81, Kaliyamalai Village, but had asked for the EVM to be replaced. He stated that the control unit did not function in the EVM, which was informed by the agent to a voter who in turn informed him about this fact. He stated that he received information over the phone. The letter dated 19.05.2016, given by the Returning Officer to the witness was marked as Ex.P5. He stated that the Ex.P5 was the reply to the letter asking for recounting of postal ballots. He also stated that the postal ballots were taken up first for counting on 19.05.2016 and he was also present at the table. He also stated that if there is a defect in the declaration form in Form 13 A, then Form 13 B will not be taken up for counting. He stated that he did not know the serial numbers of the Form 13 A which were rejected. He stated that he did not remember the name of the counting agent at table No.11. He stated that he had submitted Exs.P2, P3 and P4 requesting recounting only after the Election Petitioner had lost the Election by a margin of 87 votes. He again stated during cross examination, that if there was any defect in attestation or declaration in Form 13A, then Form 13B will not be opened. He stated that he was not present when the Engineer came to the counting hall and pressed the result button of http://www.judis.nic.in 27/130 ELP.No.8 of 2016 the control unit for EVM.No.L14732 and the results were displayed. He stated that he was able to see the display only after the 13th round. He denied the suggestion that only on his objection, as the counting agent of the Election Petitioner, were the 101 postal ballots not opened since they did not contain attestation. He denied the suggestion that the Election Petition was liable to be dismissed.
34. PW.3, B.Thamaraiselvan was the Chief Election Agent at the time of counting held on 19.05.2016. He stated that though the normal practice was that the postal ballots should be counted first, the ARO (Assistant Returning Officer) started the counting of other votes and not the postal ballots. He stated that without counting nearly 400 postal ballots, the election results were announced. He protested stating that the results should be declared only after counting the postal ballots. However, he claimed that the Assistant Returning Officer chased him and the other agents out of the counting centre. He also stated that agents Bala Aravazhi and Pasumaivalanvan were injured in the incident and their shirts were torn. He stated that later the Deputy Superintendent of Police who chased them away, returned along with the Superintendent of Police and the returned candidate, Thiru. Murugumaran. He stated that PW-2 M.Dhanakodi had given a written complaint. He stated http://www.judis.nic.in 28/130 ELP.No.8 of 2016 that despite all protests, they were sent out of the counting centre and the results were declared. He stated that all the events had been recorded in the CCTV cameras installed by the Election Commission of India. He stated that Form-20 is normally given to all the agents at the end of counting of each round, but were not given to any of the agents including himself. He therefore did not know the lead positions at the end of each round of counting. He stated that only when the 10th round was counted were the results of the 3rd round displayed. He stated that they were informed about the lead of 87 votes even before the counting of the postal ballots. He stated that the Election Commission deliberately worked against the victory of the Election Petitioner and had announced the result even without counting the postal ballots. He stated that if the margin of the victory was less than the total number of postal ballots, then the postal ballots should be recounted. He stated that had the rejected postal votes been recounted the Election Petitioner would have won the election.
35. During cross examination, he stated that PW-2 Dhanakodi was the Chief Election Agent and he was second in number. He stated that for each table there will be an election agent. He was alloted the first table and was made incharge of all the 15 tables. http://www.judis.nic.in 29/130 ELP.No.8 of 2016 He denied the suggestion that had falsely deposed that 400 postal ballots were not counted but the results were announced. He reiterated that there were totally 400 postal ballots but their protests were only with respect to 102 postal ballots. He stated that the postal ballots would not be opened if they were not attested. He denied the suggestion that 101 postal ballots were rightly rejected for want of attestation. He also denied the suggestion that Form 20 is given at the end of counting of each round. He stated that they were given only when all the rounds of counting were completed and the election results were declared.
36. The Election Petitioner filed O.A.No.927 of 2019 to summon the Returning Officer as a witness.
37. The Returning Officer, R.Muthukumaraswamy was examined as CW-1. He stated that he was posted as the Returning Officer at Kattumannar Koil (SC) Assembly Constituency for the election held on 16.05.2016. He stated that on 16.05.2016, he confirmed that all the Election Polling Officers were present in the polling centre and also supervised the mock poll held on 16.05.2016. He stated that the voting commenced at 7.00 a.m and was completed at 6.00 p.m. He also claimed that for every two http://www.judis.nic.in 30/130 ELP.No.8 of 2016 hours, he supervised as to how many votes were registered. After completion of voting and sealing the EVMs before the Observer and members of the political parties, he sent all the EVMs to the counting centre. He also supervised the strong rooms everyday, where the EVMs were kept. On the date of counting, 19.05.2016, he went to the counting centre at 05.00 a.m and made arrangements for the counting and also verified whether the counting staff were present. He also verified the counting tables. These arrangements were ratified by the Observers. He stated that counting commenced around 7.00 a.m. The postal ballots were counted first and thereafter, the counting was held at 15 tables. He stated that at the end of each round of counting, the results were announced. The Observers also verified the EVMs after the completion of each round. The agents of each candidate were also observing the counting process. The counting process was also video-graphed. He also stated that they announced the results of each round and finally declared the result of the election.
38. During cross examination of CW-1 by the learned counsel for the 1st respondent, the witness stated that there were two Assistant Returning Officers, whose names he did not remember. http://www.judis.nic.in 31/130 ELP.No.8 of 2016
39. During the cross examination by the learned counsel for the petitioner, CW-1, R.Muthukumarasway, accepted that he was responsible for every incident from the date of election till the date of announcement of result. With respect to the malfunctioning of EVM in booth No.81, Kaliyamalai, Village, he stated it was rectified by an Engineer on the date of polling itself and all the agents had approved the same. He stated that all the agents signed in Form 17- C. He stated that the polling was stopped for half an hour to one hour and the technical error was spotted after about an hour, after the commencement of polling. He also stated that the BEL Engineer rectified the technical error and had given a certificate, which was acknowledged by all the agents. On the date of counting, he claimed that the EVM was in working condition but only the display was not functioning and the same was also rectified by the BEL Engineer. He stated that the EVM was rectified at the time of polling and there could have been some problem during the transportation. He also stated that CCTV cameras had been installed in the polling booth. He stated that Form 20 was given to the agents at the completion of each round of counting. He stated that they followed the procedures. He also stated that he was prepared to submit the CCTV footage in the Court. He also stated that the leads were http://www.judis.nic.in 32/130 ELP.No.8 of 2016 alternating during the counting of each round, and that he could not specifically state when the returned candidate took the lead of 87 votes. He stated that he had rejected 101 postal ballots on the ground that there were no declaration forms and the voter's identity could not be ascertained. He stated that the total postal ballots were 1221, of which 1119 votes were found valid and 102 votes were rejected. He denied the suggestion, that the results of 7 th to 13th rounds were declared in one lot and that there was a problem in the 6th round of counting. He stated that the result was announced midway during the counting of the 7th round and the results of all the other rounds were announced after the completion of each round and not in one go. He also stated that he announced the result of each round on the dias at the counting centre in accordance with the instructions in the handbook for the Returning Officer. He stated that since the EVM had malfunctioned and the agents had caused commotion, at the instance of the election observer, the counting for the 7th round commenced before announcing the results of the 6th round. He stated that after the completion of the 18th round there was again commotion at the counting centre but there was no lathi charge. He also stated that the returned candidate came at the end of counting and that he came alone. He denied there was any violence. He also did not file http://www.judis.nic.in 33/130 ELP.No.8 of 2016 any complaint. He stated that the counting was completed between 4.30 p.m and 5.30 p.m and the results were announced at about 06.00 p.m. He denied the suggestion, that the EVM pertaining to booth No.81, Kaliyamalai Village was not rectified. He stated that he announced the results based on the paper trail of the EVM only after obtaining the approval of all the agents. He denied the suggestion, that he did not follow the instructions set out in the hand book for the Returning Officer and had announced the results in violation of the same. He denied the suggestion that he acted in favour of the ruling party, since the returned candidate entered the counting hall along with the police at 06.00 p.m. He denied the suggestion, that the postal ballots should have been recounted on his own since, the winning margin of 87 votes was lesser than the total number of postal ballots and that he was the reason for the Election Petitioner to be defeated the election. The Arguments:
40. Heard arguments advanced by Mr.K.Balakrishnan, learned counsel for the Election Petitioner and Mr.T.V.Ramanujun, learned Senior Advocate for the 1st respondent.
41. Mr.K.Balakrishnan, learned counsel for the Election http://www.judis.nic.in 34/130 ELP.No.8 of 2016 Petitioner pointed out that the Election Petition had been filed under Section 100(1)(d)(iii) of the Representation of the People Act, 1951 owing to improper rejection of postal ballots and under Section 100(1)(d)(iv) of the Representation of the People Act, 1951 owing to non compliance of the provisions of the Act / Rules made under the Act, seeking that the election of the 1st respondent should be declared void. The learned counsel stated that there had been violation of the stipulations under Section 129 of the Representation of the People Act, 1951 which stated that officials should not act for candidates and also of Section 134 of the Representation of the People Act, 1951 which relates to breach of official duty in connection with elections. The learned counsel stated that averments were specifically stated in paragraph No.23 of the Election Petition, wherein it had been alleged that there was no logical explanation for the declaration of the results 7th to 12th rounds all at one lot followed by eviction of counting agents from the counting areas and an attempt to repair the faulty EVM away from the scrutiny of the election agent and placing reliance on the paper trail generated by the faulty EVM, which ultimately altered the result of the election.
42. The learned counsel also pointed out the evidence of CW-
http://www.judis.nic.in 35/130 ELP.No.8 of 2016 1 who stated that the technical error was rectified by the BEL Engineer, and contrasted this with the statement in the counter affidavit of the 1st respondent, wherein it was stated that an Engineer from ELCOT had repaired the EVM. He also pointed out the instructions in the handbook for the Returning Officer relating to the results of electronic voting machines, in particular to Rule 3.12 – counting of votes and the guidelines given therein. He stated that if there was no display, then the Returning Officer and Observer should have sent a detailed report to the Commission as provided in Rule 3.12 (xii) and also in Rule 3.12 (xiii).
43. Continuing his arguments, the learned counsel then concentrated on the rejection of the 102 postal ballots which he stated had seriously affected the prospects of the Election Petitioner. Out of the 102 postal ballots which had been rejected, 1 postal ballot had been rejected on the ground 'no marking', and 101 postal ballots were rejected on the ground 'voter was unidentifiable'. The rejection of these votes by the Returning Officer was seriously disputed by the Election Petitioner. The learned counsel stated that on this aspect there was no proper evidence by the Returning Officer. He stated that the total number of postal ballots were 1169 and the wining margin was less than 87 votes. http://www.judis.nic.in 36/130 ELP.No.8 of 2016 Therefore, the learned counsel stated, that in accordance with the instructions given Rule 15.15.4(15) of the handbook for the Returning Officer, since the victory margin was less than the total number of postal ballots, there should have been a mandatory reverification of all postal ballots. The failure of the Returning Officer to comply with the said rule was stressed by the learned counsel who further stated that this was a procedural violation.
44. The learned counsel further stated that the Chief Election Agent, PW-2, Dhanakodi was not permitted to see the counting of the votes. He pointed out the evidence of the Retuning Officer and stated that he did not know even the symbol of the party under which the Election Petitioner contested. He further stated that at the end of the counting of each round, the results must be declared. But when the counting of the 6th round took place, the votes in the EVM.No.L14732 could not be displayed as again there was a malfunctioning of the said EVM. However, without rectifying and declaring of the result of the 6th round, the Returning Officer proceeded to continue with the counting of 7th to 12th rounds and thereafter in one lot the entire results were announced. This, according to the learned counsel was a serious violation. The learned counsel stated that Form 20 has to be given at the http://www.judis.nic.in 37/130 ELP.No.8 of 2016 completion of each round. But, the evidence of the Returning Officer shows that he does not even remember the details regarding Form 20.
45. The learned counsel also pointed out that PW-2 had given letter in this regard and the reply given to the same was vague. The learned counsel also pointed out the letter Ex.P1 given by the Election Petitioner to the Election Commission of India, marking a copy to the Returning Officer, in which recounting and repolling had both been specifically sought. In reply, it had been stated that an Election Petition has to be filed. The learned counsel therefore stated that the entire polling process was actually a mockery and materially affected the results of the election. He specifically stated that the Returning Officer failed in his duty. He also stated that the Returning Officer who was examined as CW-1 had admitted that there was a technical error in the EVM.No.L14732. The error which occurred on 16.05.2016 continued even till the counting process on 19.05.2016. The learned counsel stated that under Rule 63B of the Conduct of Election Rules, 1961 recounting should have been done. He also criticized the use of the paper trail in the faulty EVM.No.L14732, even though no candidate had asked for such procedure to be adopted. The learned counsel stated that there has http://www.judis.nic.in 38/130 ELP.No.8 of 2016 been violation of the procedures and patent irregularities in the counting. He therefore stated that the Election Petition should be allowed.
46. Mr.T.V.Ramanujun, learned Senior Counsel for the 1st respondent, seriously disputed the contentions raised by the learned counsel for the Election Petitioner. The learned Senior Counsel stated that the handbook for the Returning Officer published by the Election Commission of India cannot over ride the provisions of the Act or the rules. It has no mandatory authority. The learned Senior Counsel stated that recounting should be resorted to only when there was serious election allegations. He stated that the Returning Officer acted within the rules to reject the demand for recounting.
47. The learned Senior Counsel also stated that with respect to the postal ballots, if there were no declaration forms, then the postal ballots will have to be rejected and Form 13B shall not be opened. In this connection, he pointed out that the counting of the postal ballots was done in open, in the presence of all the election agents and once it had been found that there was no declaration / attestation, then naturally the particular postal ballot will have to http://www.judis.nic.in 39/130 ELP.No.8 of 2016 be rejected. The learned Senior Counsel also stated that official acts are deemed to be done correctly. If fraud is pleaded, then full and precise particulars should be stated. He also pointed out that the Election Petitioner was actually not present in the booth at the time of polling and counting and therefore, stated that the entire evidence is based on hearsay evidence. He further pointed out the polling agent at booth No.81, Kaliyamalai Village had not been examined and stated that it was only that said individual who would have direct knowledge of the events which are alleged to have taken place during the date of polling and about the malfunctioning of the EVM.No.L14732. He also stated, that, as pointed out in the evidence of the Returning Officer, CW-1, mock poll was conducted and no fault was found in the EVM. Even if there had been any malfunctioning it had been repaired and polling was conducted smoothly and not even one candidate or one voter had complained about the alleged delay in the polling. He stated that since direct evidence had not been let and since there are allegations only against the Returning Officer, the election of the 1st respondent cannot be set aside. He also pointed out none of the witnesses PW- 1, PW-2 or PW-3 were physically present on 16.05.2016 in booth No.81, Kaliyamalai Village. Even the presence of PW-2 was only for a very short while. He also pointed out that since paragraph No.10 http://www.judis.nic.in 40/130 ELP.No.8 of 2016 of the Election Petition had been struck off, what remains was only paragraph No.11 of the Election Petition. He stated that the Polling Officer alone was the competent person who could have given direct evidence with respect to the alleged malfunctioning of the EVM.
48. The learned Senior Counsel stated that there cannot be a shift in the burden to prove facts. The Election Petition will have to be decided on the pleadings and evidence let in on behalf of the Election Petitioner. He also pointed out that the Election Petitioner had not chosen to summon the video recordings, even though it was his consistent stand that the incidents on 16.05.2016 and 19.05.2016 were videographed. The learned Senior Counsel finally stated that the Election Petition has to be dismissed. The Issues Answered:
Issue No.1:
49. This issue has arisen in view of the fact that the 1st respondent has contended in his counter that the Election Petition did not contain the statement of material facts and full particulars within the provisions of Section 83 of the Representation of the People Act, 1951. Section 83 of the Representation of the People http://www.judis.nic.in 41/130 ELP.No.8 of 2016 Act, 1951 is as follows:
“83. Contents of petition.—(1) An election petition—
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.] (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.]” http://www.judis.nic.in 42/130 ELP.No.8 of 2016
50. Further reference can also to be drawn to Rule 94(A) of the Conduct of Election Rules, 1961. It is as follows:
“94-A. Form of affidavit to be filed with election petition.-The affidavit referred to in the proviso to sub-section (1) of Section 83 shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in Form 25.
51. Form 25 relates to the affidavit which has to be filed by the Election Petitioner. In the said affidavit, the Election Petitioner would have to specify the statements which are true to his knowledge and the statements which are true to his information.
52. The present Election Petition has been filed under Sections 64, 81, 100(1)(d)(iii) and 100(1)(d)(iv), 101, 129 and 134 of the Representation of the People Act, 1951. Section 64 of the Act, relates to counting of votes. The said provision is as follows:
64. Counting of votes.—At every election where a poll is taken, votes shall be counted by, or under the supervision and direction of, the returning officer, and each candidate, his election agent and his counting http://www.judis.nic.in 43/130 ELP.No.8 of 2016 agents, shall have a right to be present at the time of counting.
53. Section 81 of the Representation of the People Act, 1951 relates to the presentation of petitions.
54. Section 100 of the Representation of the People Act, 1951 relates to the grounds for declaring an election to be void.
55. Section 100(1)(d)(iii) and (iv) of the Representation of the People Act, 1951 are as follows:
“100.Grounds for declaring election to be void.-
(1) Subject to the provisions of sub-section (2), if the High Court is of opinion:
.......
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected.
.......
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned http://www.judis.nic.in 44/130 ELP.No.8 of 2016 candidate to be void.”
56. Section 101 of the Representation of the People Act, 1951 gives the grounds for which a candidate other than the returned candidate may be declared to be elected. The said provision is as follows:
“101. Grounds for which a candidate other than the returned candidate may be declared to have been elected.—If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion—
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.” http://www.judis.nic.in 45/130 ELP.No.8 of 2016
57. Section 129 of the Representation of the People Act, 1951 stipulates that Officers at elections are not to act for candidates or to influence voting. Section 129 is as follows:
“129. Officers, etc., at elections not to act for candidates or to influence voting.— (1) No person who is a district election officer or a returning officer], or an assistant returning officer, or a presiding or polling officer at an election, or an officer or clerk appointed by the returning officer or the presiding officer to perform any duty in connection with an election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of the prospects of the election of a candidate.
(2) No such person as aforesaid, and no member of a police force, shall endeavour—
(a) to persuade any person to give his vote at an election, or
(b) to dissuade any person from giving his vote at an election, or
(c) to influence the voting of any person at an election in any manner.
(3) Any person who contravenes the provisions http://www.judis.nic.in 46/130 ELP.No.8 of 2016 of sub-section (1) or sub-section (2) shall be punishable with imprisonment which may extend to six months or with fine or with both. (4) An offence punishable under sub-section (3) shall be cognizable.”
58. Section 134 of the Representation of the People Act, 1951, relates to breaches of official duty in connection with elections. The said provision is as follows:
“134. Breaches of official duty in connection with election.— (1) If any person to whom this section applies is without reasonable cause guilty of any act or omission in breach of his official duty, he shall be punishable with fine which may extend to five hundred rupees.
An offence punishable under sub-section (1) shall be cognizable.
(2) No suit or other legal proceedings shall lie against any such person for damages in respect of any such act or omission as aforesaid.
(3) The persons to whom this section applies are the district election officers, returning officers, assistant returning officers, presiding officers, polling officers and any other person appointed to perform any duty in connection with the receipt of nominations or withdrawal http://www.judis.nic.in 47/130 ELP.No.8 of 2016 of candidatures, or the recording or counting of votes at an election; and the expression "official duty" shall for the purposes of this section be construed accordingly, but shall not include duties imposed otherwise than by or under this Act.”
59. The Election Petitioner has not alleged correct practices as a ground to set aside the election of the 1st respondent. The main grievance is against the Returning Officer. They are twofold. He alleged that the Returning Officer had not acted in accordance with the rules when the EVM.No.L14732 in booth No.81 Kaliyamalai Village suffered technical faults on the date of polling on 16.05.2016 and again when the very same machine suffered faults on the date of counting on 19.05.2016. He further alleged that the Returning Officer rejected 102 postal ballots without proper reason. A further charge was laid that since the margin of victory was 87 votes which was less than the total postal ballots polled, there should have been reverification of all the postal ballots which though requested in writing had been rejected by the Returning Officer.
60. With respect to the pleadings, reference can also be had to Section 86(5) of the Representation of the People Act, 1951. http://www.judis.nic.in 48/130 ELP.No.8 of 2016 Under this provision, the High Court may permit any particulars to be amended or amplified. Again that relates to particulars of corrupt practices. In the instant case, the 1st respondent had filed O.A.No.304 of 2017 to strike off the pleadings in paragraphs 6 to 11, 15-17, 19, 22, 24, 25, 27 and 28 of the Election Petition. He also filed O.A.No.305 of 2017 to reject the Election Petition as not maintainable. A further application had been filed in O.A.No.333 of 2017 to strike off the 10th respondent from the parties to the petition. With respect to the relief to strike off the 10th respondent, a memo had been filed on behalf of the Election Petitioner, giving up the 10th respondent. This was recorded and the Application was closed by order dated 28.03.2018. A common order has been passed in O.A.Nos.304 and 305 of 2017 on 16.04.2018.
61. It was pointed out that this Court had partly allowed O.A.No.304 of 2017 and had struck out paragraphs No.6, 7, 10 and 24 of the Election Petition. However, the relief to reject the Election Petition was dismissed. It therefore emanates that the averments made in the Election Petition had already been considered and the above mentioned paragraphs have been struck out. An affidavit, as required has also been filed. The Election Petitioner has not questioned the conduct of the election on the ground of corrupt http://www.judis.nic.in 49/130 ELP.No.8 of 2016 practices, but as stated above, his grievances were only against the Returning Officer.
62. The learned Senior counsel for the 1st respondent had relied on 2014 10 SCC 547, C.P.John V. Babu M.Palissery and others. The said judgment related to pleadings of corrupt practices / electoral offences, as stated under Section 83 of the Representation of the People Act, 1951. It had been stated that the petitioner therein had been granted an opportunity to rectify the Election Petition and to bring it in conformity with Section 83(1) of the Act read with Rule 94(A) of the Conduct of Election Rules, 1961 and Form 25 of the Conduct of Election Rules, 1961, but the opportunity was not availed. Therefore, the High Court had rejected the Election Petition. The Honourable Supreme Court, had stated that when opportunity to rectify defeats have been turned down by the Election Petitioner, he cannot be allowed to turn around and contend that the High Court should have shown indulgence by allowing him to rectify the defects. In the instance case, as stated, the grounds on which the Election Petitioner has sought the result to be set aside are totally different. The said judgment, on facts is distinguishable.
63. The learned Senior Counsel for the 1st respondent also http://www.judis.nic.in 50/130 ELP.No.8 of 2016 relied on 2016 6 SCC 256, Jagabandhu Behera V. Subrat Tarai and others. The facts in the Election Petition in that particular case was that a returned candidate used vehicles without the permission of the Returning Officer. He also campaigned after the closure of the electioneering and also bribed and influenced the voters. In the present case, no such allegations have been made.
64. In view of all the above facts, I hold that the pleadings as stated in the Election Petition are in conformity with the allegations raised by the Election Petitioner. Issue No.1 is answered in favour of the Election Petitioner.
Issue No.3:
65. This issue relates to the incidents which are alleged to have occurred on the date of poll namely 16.05.2016. It had been stated that the EVM.No.L14732, in booth No.81, Kaliyamalai Village, malfunctioned which led to disruption of the voting.
66. The pleading in this connection in the Election Petition, in paragraph No.11, reads is as follows:
“11.The Petitioner states that this was one http://www.judis.nic.in 51/130 ELP.No.8 of 2016 of the instances of the casual attitude of the 10 th respondent to the serious requests that led to far reaching consequences. The Petitioner states that without properly considering the objections raised and without paying due heed to the responsibilities and obligations cast upon him, the 10th respondent directed continuation of polling to continue using the faulty EVM.No.L14732. The Petitioner states that his agent tried to reason with the 10th respondent that since the machine is faulty, the recording of votes, statistics and consequently, the results will not be accurate, but the 10th respondent paid no heed. The inaction of the 10th respondent smacks of malafides. The total number of votes polled in EVM.No.L14732 was said to 831.”
67. In the pleadings, it had been stated that without properly considering the objections raised, the Returning Officer had directed continuation of polling and continued to use the faulty EVM on the date of polling. The evidence on this aspect as given by PW-1, is as follows:
“On the date of polling, namely 16.05.2016, I received information that there was a malfunctioning in the Electronic Voting Machine in the booth no.81, Kaliyamalai Village. The voting continued even without the http://www.judis.nic.in 52/130 ELP.No.8 of 2016 repairing of the EVM. I learnt that a local repair person was engaged to try to rectify the EVM. There was no authorised engineer from the Election Commission to repair the machine (Learned Senior Counsel for the first respondent objects that this fact had not been pleaded).
In this connection, we had given a complaint to the election officer. At the present time, I do not have a copy of the said complaint. On the basis of my complaint, a person came to rectify the EVM. I do not know whether he was sent by the election officer. But my grievance is that the voting took place for more than 1 hour, even when the EVM was malfunctioning. ”
68. During cross examination of PW-1, the following are the questions put and answers given on this issue:
“Q. Who was the presiding officer of Booth No.81 Kaliyamalai village?
A. I do not know.
Q. Who was the polling officer of Booth No.81 Kaliyamalai village?
A. I do not know and I do not remember. Q. Did you appoint Polling Agents with photo Id cards?
http://www.judis.nic.in 53/130 ELP.No.8 of 2016 A. Yes, I appointed one polling agent with photo Id Card for each booth.
Q. You also appointed counting agents? A. Yes.
Q. Who was the counting supervisor appointed by Chief Election Officer at the time of counting on 19.05.2016?
A. I do not know.
Q. Who was the counting officer at the counting station on 19.05.2016?
A. I did not go to the counting station and therefore, I do not know who was the counting officer.
Q. The counting agents appointed by you have been given photo Id cards?
A: Yes.
Q: You said in your chief examination that you received information on 16.05.2016 that there was a malfunctioning in the EVM in booth no.81 Kaliyamalai Village?
A: Yes.
Q.How did you receive that information? Was it over phone?
http://www.judis.nic.in 54/130 ELP.No.8 of 2016 A. Yes.
Q. Who telephoned you?
A. One Ganeshamoorthy who is incharge of the constituency.
Q.Have you stated so in your election petition? A. I have not stated the name of the person who gave the said information in my election petition. Q. You have stated in your chief examination that you learnt that a local repair person was engaged to try to rectify the EVM? According to you was it on 16.05.2016?
A. Yes.
Q. I put it you that you have not pleaded this in your Election Petition.
A. Yes, I have not stated this in my Election Petition but I have deposed.
Q. According to you, there was a video coverage in the polling station no.81 and counting station? A. Yes. I received the information but I did not go to both the places in person.
Q. Who told you that there was a video coverage in the polling station no.81 and counting station? A. The same person Ganeshamoorthy. http://www.judis.nic.in 55/130 ELP.No.8 of 2016 Q. Did you or your Chief Election Agent apply for copies of the video coverage by paying necessary fees as per Rule 93 of the Conduct of Election Rules, 1961?
A. I have applied for the copies but I do not know whether the fee was paid.
Q. You have said in your chief examination that a complaint was given to the Election Officer about the malfunctioning of EVM at booth No.81 and that you do not have a copy of the said complaint?
A. I do not have copy of the complaint. Q. The 1st respondent states that there was no complaint given because there was no malfunctioning of an EVM at booth no.81 on 16.05.2016 as alleged?
A. What the 1st respondent states is false. Witness adds: Only based on our complaint, an engineer came to rectify the EVM and the polling was continued.
Q. You have given your previous answer based on the information given to you?
A. Yes.
http://www.judis.nic.in 56/130 ELP.No.8 of 2016 Q. You gave instructions to your advocate to prepare this election petition based on the telephonic information received by you on 16.05.2016 and 19.05.2016?
A. Yes.”
69. PW-2, M.Dhanakodi, also spoke about the events on 16.05.2016 with particular reference to booth No.81, Kaliyamalai Village. He was the Chief Election Agent of the Election Petitioner. He stated as follows:
“As the chief election agent of VCK, on 16.05.2016 that is the date of polling, at about 9.00am, I visited booth no.81 in Kaliyamalai village. When I went there, polling was not going on. I enquired from my party agent, and he said that he was not aware as to why polling was not going on. My party agent informed me that the polling officer had informed him that since there was some malfunction in an EVM polling was stopped. When I enquired the polling officer, I was informed by him that EVM machine bearing no.L14732 was malfunctioning.
I informed him that the EVM has to be replaced and polling should be continued. Since there were 246 polling booths, I then proceeded to inspect the other polling booths. In spite of my request, the polling officer did not heed to my request, polling was continued only after two http://www.judis.nic.in 57/130 ELP.No.8 of 2016 hours.”
70. The witness PW-2, M.Dhanakodi, was also cross examined on this aspect.
“Q. Are you aware of the guidelines given to the chief election agent and counting agent?
A. Yes.
Q. Is it correct to state that before polling commences, a mock poll is conducted in each of the polling booths to verify whether the ballot machine and control unit are functioning properly?
A.Yes.
Q. Is it correct to state that unless the EVM is functional, it will not be used for balloting? A.Yes.
Q.The mock poll is conducted one hour before the commencement of polling, is it correct? A. Only the polling agent would know.
Q. Can you name the polling booths you visited on 16.05.2016?
A. I cannot name them as i visited about 80 to 90 polling booths. Witness adds: I visited http://www.judis.nic.in 58/130 ELP.No.8 of 2016 Kaliyamalai polling booth.
Q. Who had you appointed as the polling agent for kaliyamalai polling booth?
A. I do not remember.
Q. On 16.05.2016, when your polling agent informed you that polling started late due to some fault in the EVM, did you give any written complaint to the Returning Officer to that effect?
A. No. I did not give any written complaint to the Returning Officer, I made my complaint over phone.
Q. Did you ask for re-polling from the Returning Officer in Kaliyamalai polling booth since according to you the EVM did not function?
A. No, we asked for the EVM to be replaced. I did not give any written complaint.
Q. According to you the EVM in the Kaliyamalai polling booth was not functional? Was the ballot unit not functioning or the control unit?
A. I do not remember. The witness adds: The control unit was not functioning.
Q. Who informed you about it?
http://www.judis.nic.in 59/130 ELP.No.8 of 2016 A. The agent informed a voter and he in turn informed me.
Q. You have no personal knowledge about this? A. Yes. I received the information over the phone.”
71. The Returning Officer was examined as CW-1. In his chief examination, he stated as follows:
“C.Q. : What was the date of the Election? Ans: The date of the election was 16.05.2016 C.Q. What happened on the date of election held on 16.05.2016?
Ans: I sent stationery items namely pen, pencil, pad, papers and EVMs and also necessary items on 15.05.2016 to the Election Polling Centre. I confirmed that whether the aforesaid items had reached the Centre. On 16.05.2016, I confirmed that all the Election Polling Officers were present in the Polling Centre and I also supervised the mock poll held on http://www.judis.nic.in 60/130 ELP.No.8 of 2016 16.05.2016 at 6.00 a.m. and voting commenced at 7.00 a.m and was completed at 6.00 p.m. In the meantime, every two hours, I supervised that how many votes were registered. After completion of voting and sealing the EVMs before the Observer and members of Political party, I sent all the EVMs to the counting centre. I also supervised the strong rooms everyday, where the EVMs kept.”
72. An analysis of the evidence and pleadings recorded with respect to the malfunctioning of the EVM.No.L14732 at booth No.81, Kaliyamalai Village, shows that very unfortunately, there is no direct evidence before this Court with respect to the alleged happenings. The Election Petitioner stated that he received information that the EVM in the said booth was malfunctioning. He also received information that a local repair person was engaged to rectify the EVM. He stated that a complaint had been given to the Election Officer in this connection. However, that has not been pleaded in the Election Petition. Exs.P2, P3 & P4 relate to the incidents on 19.05.2016. They do not relate to the incidents on 16.05.2016. The Election Petitioner further stated that he had http://www.judis.nic.in 61/130 ELP.No.8 of 2016 received information from one Ganeshamoorthy regarding the malfunctioning of the EVM. The said Ganeshamoorthy has not been examined as a witness. This Court had requested the learned counsel for the Election Petitioner to give a list of witnesses after the issues have been settled. On 31.01.2019, a list of 16 names have been given as the witnesses who are to be examined on behalf of the Election Petitioner. The name, Ganeshamoorthy does not find a place in the said list of 16 persons. Thereafter, a second list of 8 witnesses were given on 08.02.2019. This list also contained the address of the witnesses. Even in this list, the name, Ganeshamoorthy does not find a place. The Election Petitioner had stated that he had appointed a polling agent for booth No.81, Kaliyamalai Village. The name of the polling agent has not been disclosed. Whether the said polling agent was one of the witness mentioned in the two lists is also not known to the Court. At any rate, no polling agent was examined as a witness.
73. However, the evidence of CW-1, the Returning Officer shows that the EVM.No.L14732 failed but it was however claimed that the EVM was repaired and voting recommenced. In this connection, the learned counsel for the petitioner pointed out that there are conflicting versions whether Engineers from BEL or http://www.judis.nic.in 62/130 ELP.No.8 of 2016 Engineers from ELCOT had repaired the machine. The provisions relating to malfunctioning of EVM and the manner in which it should be addressed have been given in Rule 49(L) of the Conduct of Elections Rules, 1961. The said Rule is as follows:
“49-L. Procedure for voting by voting
machines—
(1) Before permitting an elector to vote, the polling officer shall—
(a) record the electoral roll number of the elector as entered in the marked copy of the electoral roll in a register of voters in Form 17- A;
(b) obtain the signature or the thumb-
impression of the elector on the said register of voters; and
(c) mark the name of the elector in the marked copy of the electoral roll to indicate that he has been allowed to vote;
(d) give details of the document produced by the elector in proof of his/her identification.
Provided that no elector shall be allowed to vote unless he has put his signature or thumb-impression on the register of voters. (2)Notwithstanding anything contained in sub- rule (2) of rule 2, it shall not be necessary for any presiding officer or polling officer or any other officer to attest the thumb-impression of http://www.judis.nic.in 63/130 ELP.No.8 of 2016 the elector on the register of voters.”
74. The record of the electoral roll number will be maintained in Form 17-A of the Conduct of Elections Rules, 1961. This form gives the following details:
“1. SL.No.of elector in the electoral roll.
2. Details of the document produced by the elector in proof of his/her identification.
3. Signature/Thumb-impression of elector.
4.Remarks.” This has to be signed by the Presiding Officer. This form has not been sought to be produced before this Court.
75. Finally, a reference may also be made to Rule 49(S) of the Conduct of Elections Rules, 1961. The said rule is as follows:
49-S. Account of votes recorded.— “(1) The presiding officer shall at the close of the poll prepare an account of votes recorded in Form 17-C and enclose it in a separate cover with the words “Account of Votes Recorded” superscribed thereon.
(2) The presiding officer shall furnish to every polling agent present at the close of the poll a true copy of the entries made in Form 17-C after obtaining a receipt from the said polling agent http://www.judis.nic.in 64/130 ELP.No.8 of 2016 therefor and shall attest it as a true copy.”
76. Form 17C will give the details relating to the total number of votes as entered in the register for voters and the Form 17A and also every other detail. This form has also not been summoned before this Court. These two forms are vital since, the number of voters who exercised their franchise can be known. This number of voters who actually exercised their franchise can be compared with the total number of votes as counted in booth No.81, Kaliyamalai Village. The burden is on the Election Petitioner to prove this aspect. The burden has not been discharged.
77. The evidence on this aspect being sparse, the Court can never come to a conclusion that prejudice was caused owing to alleged malfunctioning of the EVM. As a fact, there had been a slight disruption during the voting process but that had been rectified. It is also pertinent to point out that no complaints have been received from any of the voters that he / she had been seriously prejudiced and prevented from exercising his/her right to vote owing to the malfunctioning of the EVM.
78. A perusal of the pleadings show that since paragraph 10 had been struck off by order of Court, which order has not been http://www.judis.nic.in 65/130 ELP.No.8 of 2016 challenged, the averments in paragraph 11 simply hang in the air without any foundation. Material facts have not been pleaded. Particulars to support the material facts, if any, have also not been pleaded. Direct evidence has not been let in. The Election Petitioner will have to stand or fall on his own pleadings and evidence.
79. In view of the above discussion and particularly in view of the absence of direct evidence, this issue will have to be held against the petitioner.
Issue No.4:
80. This issue relates to the counting of the votes as displayed from the EVMs on 19.05.2016. The allegation raised by the Election Petitioner is that the EVM.No.L14732 of booth No.81, Kaliyamalai Village, was taken up for counting in the 6th round. It had been insisted by the learned counsel for the Election petitioner that the results of each round will have to be declared after the counting was completed in that particular round and only thereafter, the counting of the next successive round must be taken up. In this connection, reference was also made to Form 20, which is stipulated under Rule 56(7) and also under Rule 59(7) of the Conduct of Elections Rules, 1961.
http://www.judis.nic.in 66/130 ELP.No.8 of 2016
81. Rule 56 of the Conduct of Elections Rules, 1961, relates to counting of votes. Rule 56(7) of the Conduct of Election Rules, is as follows:-
“56(7). After the counting of all ballot papers contained in all the ballot boxes used at a polling station has been completed,—
(a)the counting supervisor shall fill in and sign Part II—Result of Counting, in Form 16, which shall also be signed by the returning officer, and
(b)the Returning Officer shall make the entries in a result sheet in Form 20 and announce the particular.”
82. Rule 59(7) of the Conduct of Elections Rules, 1961 is as follows:
“59(7).After the counting of all ballot papers contained in all the ballot boxes used at a polling station has been completed,—
(a)the counting supervisor shall fill in and sign Part II—Result of Counting in Form 16 which shall also be signed by the returning http://www.judis.nic.in 67/130 ELP.No.8 of 2016 officer; and
(b)the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars.”
83. The Rules have reference to both Form 16 and Form 20. Part – I of Form 16 relates to ballot paper account. The details given in this part are the Name of the Assembly Segments, Numbers and Name of Polling Station, the Number of Ballot papers received, the number of unused ballot papers (which had not been issued to voters), with or without signatures of Presiding Officer, the Number of Ballot papers used at the Polling Station but not inserted into the ballot box, which would include ballot papers which are cancelled for violation of voting procedure and ballot papers used as tendered ballot papers, and the total Number of ballot papers found in the ballot box. In effect this part contains the details of the ballot papers issued and finally found in the ballot box.
84. Part-II of Form 16 relates to the result of counting of the ballot papers. It gives the Number of valid votes cast and the Number of rejected ballot papers with respect to each candidate. This has to be signed by the Counting Supervisors and also by the http://www.judis.nic.in 68/130 ELP.No.8 of 2016 Returning Officer.
85. Form 20 under Rule 56(7) gives the details of Number of ballot papers cast in favour of the candidates, the total Number of valid votes, the Number of rejected votes and the total Number of tendered votes.
86. Similarly, Form 20, with respect to Rule 59 is the Final Result Sheet, which gives the details of Number of ballot papers found in the ballot box and with respect to each candidate, the Number of valid and rejected votes. This form has to be signed by the Returning Officer. In the instance case, it has been repeatedly stated by the learned counsel for the Election Petitioner that even though the result of the 6th round was not announced, the counting from the 7th round onwards commenced and the results were announced in one lot prior to the announcement of the counting of the 13th round.
87. The Election Petitioner had stated as follows in paragraphs 15 and 16 of the Election Petition:
“15.The petitioner states that contrary to the statutory rules and norms, the result of http://www.judis.nic.in 69/130 ELP.No.8 of 2016 each round of counting were not declared immediately in respect of the 159- Kattumannarkovil (SC) Constituency. Further, none of the officials on election duty responded to the queries of the petitioner's election agent and the agents of the other candidates as to the delay. The petitioner states that the results of the 1st round of counting was declared only when the counting of the 3rd round had commenced.”
16.The petitioner states that during the 6th round of counting, the faulty EVM.No.L14732 from booth No.81 again developed technical issues due to which the votes polled by the candidate were not displayed. It was only during the counting of the 6th round when there was a delay in view of the faulty EVM that the results up to the 5th round were declared. The petitioner states that there was utter chaos in the way the counting booth was managed and again, the counting of the subsequent rounds commenced even though the EVM.No.L14732 from booth No.81 was not set right and did not display the results. When a request was made to repair the EVM before proceedings further, the officials stated that the technician/engineer had to come from Cuddalore and hence, refused to heed to the legitimate request of the petitioner's counting agent (or chief election http://www.judis.nic.in 70/130 ELP.No.8 of 2016 agent).”
88. It is also contended that with respect to the discrepancies mentioned, the Chief Election Agent, PW-2, M.Dhanakodi had addressed to the Returning Officer a letter stating that Form 20 had not been given for each successive round.
89. In Ex.P3, dated 19.05.2016, PW-2, M-Dhanakodi had again addressed the Returning Officer, stating that the ballot papers should be kept in safe custody. By Ex.P4 also dated 19.05.2016, PW-2, M.Dhanakodi, had further addressed the Returning Officer, stating that the results of the Election should be kept on hold. On the very same day, by Ex.P5, the Returning Officer had replied to PW2-Dhanakodi. He stated that the request to withhold the election result is rejected, since, 102 postal ballots have been rejected and since PW-2 was present near the table were the postal ballots were kept and the request cannot be acceded after the counting has been completed.
90. In his evidence, Election Petitioner stated as follows in his chief examination:
“The counting took place on 19.05.2016. Even during the counting procedure, this http://www.judis.nic.in 71/130 ELP.No.8 of 2016 particular EVM relating to booth no.81, malfunctioned and the votes could not be properly counted in the sixth round. During the counting of votes on 19.05.2016, I was in Chennai. I was informed over telephone by my Chief Election Agent Thiru. Dhanakodi about this problem of malfunctioning of an EVM relating to booth No.81. I told him to give a complaint to the Returning Officer. In accordance with my instructions, my chief election agent Thiru. Dhanakodi gave a complaint to the Returning Officer on 19.05.2016 itself. I had filed a copy of the complaint along with my petition. Further, the Returning Officer had also acknowledged this complaint by separate letter dated 19.05.2016 addressed to Thiru. Dhanakodi, which document is also filed along with my election petition.
I am to state that during the counting of votes, the result of each round must be declared before the counting begins for the next successive round. This means that the counting for the second round cannot start without declaring the result of the first round and similarly. However, the result of the sixth round was not announced before the commencement of counting the 7th round. As a matter of fact, the result of the 6th , 7th , 8th 9th ,10th , 11th and 12th rounds were not announced immediately after they were counted but announced together at the commencement of the 13th round. I am to state http://www.judis.nic.in 72/130 ELP.No.8 of 2016 that this procedure is illegal and against the rules. My agents who were present during the counting , protested to the counting of the votes in the malfunctioning EVM relating to booth no.81. The Returning Officer pacified my men stating that the authorized repair person will come. However, the result of the malfunctioning EVM was taken into account by the Returning Officer. I am to state that when there is a malfunctioning of an EVM, there were certainly mistakes in the output relating to the votes polled also. This is also illegal.
When my agents protested, the police chased them away by using force.
Thiru.Dhanakodi was in the counting room, however, my other agents were asked to go out. The witness adds that some of the names are given in para 29. Whoever protested were chased out. I am not very sure about the name of the agents who were chased out.”
91. This aspect was also the subject of cross examination by the learned Senior Counsel for the 1st respondent. The cross examination of PW-1, is as follows:
“Q. On 19.05.2016, an ELCOT engineer came to the counting station while counting the votes polled in No.81 Kaliyamalai village? http://www.judis.nic.in 73/130 ELP.No.8 of 2016 A. An engineer had come but I do not know whether he was from ELCOT or not.
Q. Who will know that?
A. My chief election agent Dhanakodi would know about it.
Q. When the result button was pressed, in the presence of the ELCOT engineer the votes polled in the EVM pertaining to booth no.81 by each candidate was displayed?
A. I deny that. I was told that the engineer announced the result from the paper trail from the EVM.
Q. I put it to you that the answer given by you is not correct?
A. I deny the suggestion.
Q. The 1st respondent has stated that in the counting station at the end of each round of counting, the results were announced and your evidence that the results were not announced at the end of each round is not true?
A. I deny the statement. In my evidence I have stated that the results for 6th to 12th rounds were not announced immediately at the end of http://www.judis.nic.in 74/130 ELP.No.8 of 2016 each round of counting.
Q. Your evidence that as if there was a malfunctioning of an EVM and that there were certainly mistakes in the output relating to the votes polled is not correct?
A. I deny the suggestion.
Q. I also put it to you that the counting was done as per the Conduct of Election Rules and that there was nothing illegal as alleged by you?
A. I deny the suggestion, my election petition itself is that the procedure was not followed.”
92. PW-2, M.Dhanakodi, Chief Election Agent of the Election Petitioner also tendered evidence with respect to the counting process on 19.05.2016. He stated in chief examination as follows:
“On 19.05.2016, the counting of votes was done at C. Mutulur Govt Arts College near Chidambaram. During the counting process, as the Chief Election Agent of my party, I was present at the place were postal ballots were being counted. The counting was done across 14 tables in 18 rounds. On the day of counting, http://www.judis.nic.in 75/130 ELP.No.8 of 2016 at about 11am, on the 11th table in the 6th round when the EVM bearing no.L14732 pertaining to No.81 Kaliyamalai village was taken up for counting, again there were technical problems. When I enquired from the Election Officer about the malfunctioning EVM, I was told by the Election officer that an engineer would be summoned to rectify the problem. At that point of time, the results of 6 successive rounds were displayed on a black board against each candidate for the benefit of the party agents. Subsequently, 11 rounds of counting were completed but the results of each successive rounds were not displayed on the black board. I suspected that something was wrong and I therefore requested the election officer for Form-20 both orally and in writing.”
93. During cross examination, PW-2 M.Dhanakodi stated as follows:
“Q. When EVM L14732 did not display the results in the 6th round, did an engineer from ELCOT visit the counting hall?
A. An engineer came, I do not know whether he was from ELCOT or not.
Q. When the engineer came to the counting hall and pressed the result button of the control unit, http://www.judis.nic.in 76/130 ELP.No.8 of 2016 the results were displayed, is it not? A. I was not present there.
Q. I put it to you that as soon as the ELCOT engineer came to the counting hall and after he pressed the result button in the control unit, the results were displayed and counting of the 6th round continued.
A. I was able to see it in the display only after the 13th round.”
94. PW-3, B.Thamaraiselvan, who was also the Chief Election Agent of the Election Petitioner stated as follows with respect to the counting of votes on 19.05.2016:
“As the Chief Election agent, I protested stating that the results of election should be declared only after counting the postal ballots. Apart from refusing my request , the Assistant Returning Officer chased us away from counting centre with the help of the police. Our agents Bala Aravazhi and Pasumaivalanvan were injured in this incident. Their shirts were torn. After some time the DSP who chased us away, returned along with the SP and the returned candidate, Murugumaran. Mr.Thanagodi who http://www.judis.nic.in 77/130 ELP.No.8 of 2016 also worked with me as an election agent gave a written complaint to the ARO. Despite all our protests, we were sent out of the counting centre and the election results were declared stating that Mr. Thirumavalavan lost the election by 87 votes. The police chasing us away and all other events have been recorded in the CCTV cameras installed by the Election Commission. The Form 20 is usually given to all the agents at the end of the counting of each round . However, the form 20 were not given to any of the agents including myself at this counting centre. We did not know the leading position at the end of each round of counting. Normally, the results of each round is displayed on the board but in this counting centre, only when the 10 round was counted, the results of the third round was displayed. We were informed of the lead of 87 votes even before the counting of postal ballots.”
95. During cross examination, he answered as follows for the questions put to him:
“Q: Kindly see para 29 of the election petition. You have referred to one Pasumaivalavan. Kindly say if his name is found in paragraph 29. http://www.judis.nic.in 78/130 ELP.No.8 of 2016 A: His name has not specifically mentioned. But it has been stated as '' Chief Election Agent Mr M. Thanagodi and other persons''. Q: I put it to you whatever you have deposed before this Hon'ble Court is false and there is no truth in it.
A: I deny the suggestion. All the events that I have deposed about have been recorded in the CCTV cameras installed in the counting centre. Q: I put it to you that the 10th respondent has rightly rejected the 101 postal ballots for want of attestation in the declaration forms. A: I deny the suggestion. All the declaration forms were attested.
Q: I put it to you that in one postal ballot, the voter had not exercised his franchise. A:I deny the suggestion.
Q: I put it you that Form 20 are not given at the end of each round of counting but only given when all the rounds of counting are completed and the election result are declared. A:I deny the suggestion. The signature of the agent is required.
http://www.judis.nic.in 79/130 ELP.No.8 of 2016 Q: I put it to you that your evidence that the counting agents were chased away from the counting centre with the help of police force is false.
A: I deny the suggestion. The police chasing us away is recorded in the CCTV cameras.”
96. The Returning Officer was examined as CW-1, he stated as follows with respect to the counting held on 19.05.2016:
“C.Q: When was date of the counting? Ans: The counting was held on 19.05.2016. C.Q: What happened on the date of counting? Ans: I went to the Counting Centre at 5.00 am on 19.05.2016 and made all the arrangements for counting and also verified as to whether all the counting staff were present and they were randomised before the Observers. I also verified the counting tables and they have also ratified arrangements. Counting was commenced around 7.00 a.m. Firstly we counted the postal ballets and thereafter, the counting was held at 15 tables. After completing each round of the counting, announced the votes obtained by each of the candidates at each round. The http://www.judis.nic.in 80/130 ELP.No.8 of 2016 observers used to verify the EVMs after completing each round. The agent of each candidate were also observing the counting process and the counting was also videographed. In the same way, we announced the results in each round and finally we also declared the result of the election.”
97. He was cross examined by the learned counsel for the Election Petitioner. Following are the questions put to him and the answers given by him:
“Q: Totally how many rounds were
counted?
A: 18 rounds.
Q: Form-20s are to be given to the
counting agents at the completion of each round of counting, was it done?
A: Yes. Form -20s were given to the agents after each round of counting.
Q: Only after the completion of the first round and after giving Form-20 to the agents, the second round of counting should commence, is it correct? Did you do so?
A: Yes. After the completion of each http://www.judis.nic.in 81/130 ELP.No.8 of 2016 round, Form-20 was given to the agents. I also followed the same procedure.
Q: I put it to you that since you did not give the Form-20 to the agents after each round of counting, you are unable to say in which round the returned candidate took a lead by 87 votes.
A: I deny the suggestion.
Q: I put it to you that you cannot say exactly in which round the returned candidate took a lead of 87 votes.
A: Yes. Since the lead would go up and down, I cannot specifically say which round.
Q: I put it to you that there was a problem in the sixth round of counting pertaining to Kalaiyamalai booth and so you had announced the results of rounds 7 to 13 in one lot.
A: I deny the suggestion. After the BEL Engineer rectified the EVM pertaining to Kaliayamalai booth, the result was announced midway of the counting of the seventh around and the results of all other rounds were http://www.judis.nic.in 82/130 ELP.No.8 of 2016 announced after the completion of each round and not in one go.
Q: As per the handbook of the RO officer, you as a RO had to go on dias and announce the leading position of each candidate. Did you do so?
A: Yes. I announced the results of each round on the dias at the counting centre.
Q: Did you announce the results of the sixth round and then commence the counting of the seventh round?
A: No. Since the EVM had malfunctioned and the agents had caused commotion, at the instance of the election observer, the seventh round was commenced before announcing the results of the sixth round.
Q: When did the commotion start at the counting centre?
A: After the 18th round was completed.
Q: Did the police carry out lathi charge?
A: The police did not carry out any lathi charge but they dispersed the crowd.
Q: At the time of counting, did the http://www.judis.nic.in 83/130 ELP.No.8 of 2016 returned candidate come to the counting centre?
A: Yes. He came at the end of counting.
Q: Did the police accompany him?
A: No. He came alone.
Q: What action did you take on the violence that happened at the counting centre?
A: There was no violence. The police had dispersed the crowd. I did not file any complaint as an RO.Q: I put it to you that only because you had not rectified the EVM pertaining to Kaliyamalai booth, it malfunctioned at the time of counting as well.
A: I deny the suggestion. Witness adds: If it had not been rectified, it would have been replaced.
Q: I put it to you that since the EVM mal functioned, you had announced the results only based on the paper trail of the EVM.
A: Yes. I announced the results based on the paper trail of the EVM but after obtaining the approval of all the agents.
Q: I put it to you that you did not follow http://www.judis.nic.in 84/130 ELP.No.8 of 2016 the instructions set out in the handbook of the RO and that you had announced the results in violation of the same?
A: I deny the suggestion.”
98. An analysis of the pleadings and evidence recorded and extracted above reveals the following;
The Election Petitioner has alleged that on information received by him that during the counting the EVM.No.L14732 in the 6th round, there were some defects in the EVM.No.L14732 and thereafter, counting of the other rounds proceeded and the results were declared at one lot before the counting of the 13 th round. This statement has been denied by the Returning Officer. It is seen that the Election Petitioner has not complained that the validly polled ballots were rejected. It is not his contention that all the ballot papers as recorded in the EVM were not counted. They were all actually counted. The results were declared. It is a fact that EVM.No.L14732 suffered a fault at the time of polling on 16.05.2016 but it was repaired and the polling recommenced.
99. Thereafter, during the counting, it is a fact that there was an issue with respect to the display of the vote. Thereafter, again an http://www.judis.nic.in 85/130 ELP.No.8 of 2016 Engineer had come and had repaired the EVM.No.L14732. The votes were finally counted. The petitioner has not stated as to how he was prejudiced, even if his case is to be accepted that the results of the 7th to 12th rounds were announced at the end of the 13th round. The burden is heavily on the petitioner to summon the results of each round and thereafter lead the Court to the conclusion that with sole object to defeat him, the results of each round were deliberately withheld and were finally announced in one lot at the end of the 13th round.
100. I am unable to comprehend, the prejudice cause to the Election Petitioner, insofar as the counting of the votes recorded in the EVM is concerned. The Election Petitioner has not contested that the counting done through the paper trail had given a wrong figure of the number of votes polled, the number of valid votes, number of rejected votes and the number of votes polled for each candidate. As stated the primary data regarding the number of votes actually polled in booth No.81, Kaliyamalai Village had not been summoned by the Election Petitioner. It had been repeatedly stated in evidence that the agents of the Election Petitioner were chased away by the police. It was also stated that these incidents were recorded on the CCTV camera. Unfortunately, for the reasons http://www.judis.nic.in 86/130 ELP.No.8 of 2016 best known to the Election Petitioner, he had not summoned the recordings. He had summoned the Returning Officer as a witness, but even then he did not seek for a direction that the witness must produce the copies of the recordings in the CCTV camera. In the absence of proof, this Court cannot assume and presume facts.
101. There has been reference to the instructions given in the hand book for the Returning Officer. Rule 15.29 of the handbook of the Returning Officer, relates to the action to be taken in case of malfunctioning of EVM during counting of votes. The procedure is as follows:
“15.29.Action to be taken in case of
malfunctioning of Electronic Voting Machine
(EVM) during counting of votes:
15.29.1 Following actions to be taken in case of malfunctioning of EVM during counting of votes:
a)In case any Control Unit does not display result, it should be kept back inside its carrying case and then be kept in the Returning Officer's custody in the counting hall. Counting of votes in other machines should continue as usual.
http://www.judis.nic.in 87/130 ELP.No.8 of 2016
b)Result from such Control Unit(s) will not be retrieved using Auxiliary Display Unit or Printer.
c)After completion of counting of votes of all the Control Units, the printed paper slips of the respective VVPAT shall be counted as per the counting procedure prescribed by the Commission to count VVPAT paper slips.
d)Thereafter, counting of printed paper slips of VVPAT(s) under Rule 56(D) of the Conduct of Elections Rules, 1961 should be taken up, if any.
e)A report regarding counting of VVPAT paper slips should be sent to the Commission in the following format through CEO concerned for information:
S.No. No. and Polling Unit ID of Unit ID of Control Unit for Name of Station VVPAT which VVPAT paper slips Assembly No. counted Constituency Non- Under Rule retrieval of 56D of the result from Conduct of CU Election Rules 1961 1 2 3 4 5 6 1. 2.
f)After completion of counting, all the Control Units whether result has been retrieved from it or not should be kept back inside their http://www.judis.nic.in 88/130 ELP.No.8 of 2016 respective carrying cases. The carrying case should then be sealed once again. The Returning Officer and Observer should put their signatures on the seal. All candidates and their election agents should also be allowed to put their signatures on the seal. The Control Unit should be then kept in the strong room (s).”
102. A reading of the instructions shows that if a controlling unit does not display the result, then it should be kept back in its carrying case and thereafter, the counting of votes in other machines should continue as usual. This naturally means, that if the counting of votes from EVM.No.L14732 could not be displayed, then the Returning Officer was well within his rights to continue with the counting of the 7th and other successive rounds. In his evidence, the Returning Officer stated that he had done just that.
He had thereafter, counted the votes through paper trail. This is also provided in the instructions extracted above. Therefore, the petitioner now cannot turn around and seek to set aside the entire election, particularly, when he had not summoned Form 17A, 17B and 17C which are the requisite forms under Conduct of the Election Rules, 1961. These forms relate to the number of ballot papers in each polling station, the register of voters, the list of http://www.judis.nic.in 89/130 ELP.No.8 of 2016 tendered votes and the account of votes recorded. It has not been complained by any of the witnesses or by the Election Petitioner himself, that there were defects in these forms with respect to booth No.81, Kaliyamalai Village. Therefore, even if the counting has been done through the paper trail no prejudice has been caused to the Election Petitioner.
103. In 2013 10 SCC 500, Subramanian Swamy V. Election Commission of India, the Honourable Supreme Court had occasion to examine the system of “paper trail/paper receipt” in the electronic voting machines (EVMs) as a convincing proof that the EVM has rightly registered the vote cast by a voter in favour of a particular candidate. The Honourable Supreme Court, elaborately discussed the said issue and finally held as follows:
“28. From the materials placed by both the sides, we are satisfied that the “paper trail” is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the “paper trail”. EVMs with VVPAT system ensure the accuracy of the voting system. With an intent to have fullest transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs with VVPAT system because vote is http://www.judis.nic.in 90/130 ELP.No.8 of 2016 nothing but an act of expression which has immense importance in a democratic system.”
104. In the absence of proof that the counting in the 6th round from EVM.No.L14732 had seriously and materially affected and prejudiced the results of the election, this Court cannot come to the conclusion, that on this sole ground, the election of the returned candidate should be set aside. There should be proof that even though the counting had been done through paper trail, the actual votes counted was different from the votes recorded as polled during the election date. This is a fact, which has to be proved by the Election Petitioner alone. It has not been proved. Once it has not been proved, the only conclusion which can be drawn is that the proceeding with the counting of the other EVMs and declaring the results was proper and in conformity with the election counting rules. To reiterate, Rule 15.29 of the handbook for the Returning Officers specifically state that, counting of other machines should continue as usual, in case any control unit does not display the result of a particular EVM. I therefore, hold that this issue has to be answered against the Election Petitioner. Issue No:2 http://www.judis.nic.in 91/130 ELP.No.8 of 2016
105. This issue relates to the rejection of 102 postal votes by the Returning Officer and whether such rejection was in conformity or in contravention to the Election Counting Rules. This issue is the main fulcrum around which the Election Petition revolves. The margin of victory by the 1st respondent was 87 votes. 102 postal ballots were rejected. 1 postal ballot was rejected on the ground that there was 'no marking'. 101 postal ballots were rejected on the ground that there was no proper attestation and that the voters were unidentified. The rejection of these postal ballots have been seriously questioned and challenged by the Election Petitioner. The pleadings with respect to this issue is as follows:
“12.The petitioner states that on the date of counting i.e.,19.05.2016, when the postal ballots were taken up for counting, the 10th respondent improperly and contrary to the Election Rules, disregarded a total of 102 votes, of which 1 vote was for 'No Marking' and 101 postal votes for the reason 'Voter Unidentified' by a misplaced interpretation of the Representation of People Act, 1951, the Conduct of Election Rules, 1961 and also the Handbook for Returning Officers, 2014, published by the Election Commission of India.
13.The petitioner states that when his election agent questioned the 10th respondent as to why the 101 postal votes were rejected, he blatantly refused http://www.judis.nic.in 92/130 ELP.No.8 of 2016 to provide any reasons for the same. The petitioner states that his Chief Election Agent, Mr.M.Dhanakodi immediately sent a representation dated 19.05.2016 to the 10th respondent, requesting him to not to declare the results of the election as there were discrepancies in the rejection of postal votes.”
106. During his evidence, the Election Petitioner stated as follows:
“Out of 102 postal votes which were rejected, one vote was rejected because the mark was not proper and 101 votes were rejected on the ground they could not be properly identified. My agents protested and requested the Returning Officer to open the 101 postal votes which were rejected on the ground 'unidentified' but the pleas were rejected by the Returning Officer.
In this connection, my chief election agent Thiru.Dhanakodi, gave a written complaint on the same day 19.05.2016. A copy of this complaint has been filed by me my along with Election Petition, the Returning Officer also gave a reply to it. In the reply, he has stated that one postal vote was rejected because there was no valid mark and 101 postal votes were rejected because there was http://www.judis.nic.in 93/130 ELP.No.8 of 2016 no declaration. I am to state that the declaration would be kept along with the postal ballot and it can be seen only when the postal ballot is opened. However, this was not done by the Returning Officer. I specifically state that the Returning Officer did not follow the hand book given by the Election Commission relating to the guidelines for counting of votes. The Returning Officer in the reply also stated that since my Chief Election Agent Dhanakodi was in the very same place where the postal ballots were kept, the postal ballots cannot be counted. He also stated in the reply that the complaint was given after the counting process and therefore the complaint cannot be accepted. I specifically state that the Returning Officer was biased against me. I also specifically state that my main opposition candidate belonged to the ruling party and therefore the police officials and election officials were in his favour and biased towards me.”
107. During his cross examination on this issue, PW-1, answered as follows:
“Q. Did you go through Forms-13 A, B, C and D of the Conduct of Election Rules, 1961? A. I did not have the opportunity to go through http://www.judis.nic.in 94/130 ELP.No.8 of 2016 the said forms.
Q. Do you know that in the postal ballot there is a declaration form, cover A and cover B given to the person who wants to exercise his franchise by way of postal votes?
A. Yes, I know that procedure.
Q. Such voter who will vote by postal ballot will have to fill up the declaration form and get it attested by an officer mentioned in the Conduct of Election Rules?
A. Yes, I know that procedure.
Q. Declaration is necessary to identify the voter namely, from which place he comes from, his number and all other particulars? A. Yes, it is necessary.
Q. The Returning Officer has rejected 101 postal ballot papers on the ground that there was no declaration forms?
A. Yes, he rejected them on that ground. Q. One postal ballot paper was rejected on the ground that there was no marking on it? A. Yes.
Q. I put it to you that 101 postal ballots were http://www.judis.nic.in 95/130 ELP.No.8 of 2016 validly rejected since there was no proper declaration or attestation?
A. I deny the suggestion. Witness adds: Only on opening the cover containing the postal ballot one would know if there is a declaration or attestation.
Q. According to you which cover has to be opened?
A. The cover which has been submitted has to be opened.
Q. Can I take it that the answer that you now gave is based on your personal opinion? A. Yes, it is based on my personal opinion. Q. I put it to you that Cover A containing the postal ballot cannot be opened if there is no declaration or attestation to identify the voter? A. I deny the suggestion.”
108. PW-2, M.Dhanakodi in his chief examination, stated as follows:
“Then, as the Chief Election Agent, I went to the place where postal ballots were being counted. The postal ballots were not properly counted. Out of the 102 postal http://www.judis.nic.in 96/130 ELP.No.8 of 2016 ballots, 1 was rejected and 101 were not accepted. I submitted a letter that the 101 postal ballots should also be counted Ex.P3 is the photocopy of the letter dated 19.05.2016 submitted by me to the Election Officer Kattumannarkoil (Reserved) Constituency. (Learned Counsel for the respondents objects regarding its admissibility since it is a photo copy and also stated that no acknowledgement was furnished, the objection should be answered at the time of main arguments).”
109. During his cross examination, PW-2, M.Dhanakodi answered as follows:
“Q. Is it correct to state that the postal ballots were taken up first for counting?
A. Yes.
Q. The postal ballots are counted at the table of the Returning Officer, is it correct? A. Yes.
Q. Were you also present at the table? A. Yes.
Q. As far as postal ballots are concerned, there are two forms - Form 13 A and Form 13 B? A. Yes.
Q. Form 13A consists of the voter's Declaration http://www.judis.nic.in 97/130 ELP.No.8 of 2016 Form?
A. Yes.
Q. It should contain a proper attestation? A. Yes.
Q. Is it correct to state that if there is a defect in the Declaration Form of Form 13 A, the postal ballot in Form 13 B will not be taken up for counting?
A. Yes.
Q. The serial numbers of the ballot paper is mentioned in Form 13 A also?
A. Yes.
Q. When you gave information to the Election petitioner, at the time of preparing the election petition, did you inform him as to which Serial numbers Of Form 13A were rejected? A. 101 postal ballots were not opened and therefore I do not know the serial numbers. Q. Have you stated in Exs.P2,P3 and P4 that 101 postal ballots were not opened?
A.I have mentioned it in Ex.P4.”
110. During his further cross examination, he answered as follows:
http://www.judis.nic.in 98/130 ELP.No.8 of 2016 “Q. Is it correct to state that Forms 13 A and 13B will be contained in the same cover, Form 13 C? A. Yes.
Q. Is it correct to state that when Form 13 C cover is opened, Form 13 A is first looked into? A. Yes.
Q. Is it correct to state that if there is any defect in attestation or declaration in Form 13A, Form 13B will not be opened?
A. Yes.”
111. PW-3, B.Thamaraiselvan, in his chief examination, stated as follows:
“In the last 7 rounds of counting, Mr.Thirumavalavan was leading and if the postal ballots had been counted, he would have continued his lead but the police and the Election Commission deliberately worked against his victory and announced the result even without counting the postal ballots. If the margin of victory is lesser than the total number of postal ballots, the postal ballots should be recounted. Despite our requests, the ARO did not recount the postal ballots.” http://www.judis.nic.in 99/130 ELP.No.8 of 2016
112. During his cross examination, he answered as follows:
“A: There were totally 400 postal ballots. Our protests were only with regard to the 102 postal ballots.
Q: I put it to that 101 postal ballots were rejected for want of attestation in the declaration form and one vote was rejected as a voter had not exercised his franchise. A: The postal ballots were not opened and all of them had been attested.”
113. CW-1, R.Muthukumaraswamy, the Returning Officer was cross examined on this aspect by the learned counsel for the petitioner as follows:
“Q: What would the postal ballot contain? A: The postal ballot would contain Form-13A, the Declaration Form. Form -13B the inner cover and Form-13C the outer cover. Q: In this case, did you verify all the forms of the postal ballot?
A: The agents would observe the opening of the http://www.judis.nic.in 100/130 ELP.No.8 of 2016 postal Ballots and after scrutiny, on their suggestion if there is any discrepancy the postal ballots would be rejected and the postal ballot would also be rejected if it does not contain a declaration form.
Q: You had rejected 101 postal ballots on the basis that they were "un-identifiable"? What you mean by "Un-identifiable"?
A: When there is no declaration Form, the voters identity cannot be ascertained and that is what is meant by '"un-identifiable". Q: What is the total number of postal ballots? A: Total number of postal ballots were 1221, of which 1119 votes were found valid and 102 votes were rejected.”
114. In this connection, reference will also have to be made to Rule 15.15.4(15) of the handbook for the Returning Officers. It is as follows:
“In case the victory margin is less than total number of postal ballots received then there should be mandatory re-verification of all http://www.judis.nic.in 101/130 ELP.No.8 of 2016 postal ballots. In the presence of Observer and the RO all the postal ballots rejected as invalid as well as the postal votes counted in favour of each and every candidate shall once again be verified and tallied. The Observer and the RO Shall record the findings of re-verification and satisfy themselves before finalizing the result. The entire proceeding should be video-graphed without compromising the secrecy of ballot and the video-cassette/CD should be sealed in a separate envelope for future reference.”
115. Rule 23 of the Conduct of the Elections Rules, 1961 relates to issue of ballot papers. Rule 23(1) is as follows:
“23.Issue of ballot paper.—(1) A postal ballot paper shall be sent by post under certificate of posting to the elector together with—
(a) a declaration in Form 13-A;
(b) a cover in Form 13-B;
(c) a large cover addressed to the returning officer in Form 13-C; and http://www.judis.nic.in 102/130 ELP.No.8 of 2016
(d) instructions for the guidance of the elector in Form 13-D:
Provided that the Returning Officer may, in the case of a special voter or a voter on election duty, deliver the ballot paper and Forms, or cause them to be delivered, to such voter personally.”
116. Rule 54(A) of the Conduct of the Elections Rules, 1961, relates to counting of votes received by post. The entire rule is extracted below:
“54A. Counting of votes received by post.—(1) The returning officer shall first deal with the postal ballot papers in the manner hereinafter provided.
(2) No cover in Form 13C received by the returning officer after the expiry of the time fixed in that behalf shall be opened and no vote contained in any such cover shall be counted.
(3) The other covers shall be opened one after another and as each cover is opened, the returning officer shall first scrutinise the declaration in Form 13A contained therein.
(4) If the said declaration is not found, or has not been duly signed and attested, or is otherwise substantially defective, or if the http://www.judis.nic.in 103/130 ELP.No.8 of 2016 serial number of the ballot paper as entered in it differs from the serial number endorsed on the cover in Form 13B, that cover shall not be opened, and after making an appropriate endorsement thereon, the returning officer shall reject the ballot paper therein contained.
(5) Each cover so endorsed and the declaration received with it shall be replaced in the cover in Form 13C and all such covers in Form 13C shall be kept in a separate packet which shall be sealed and on which shall be recorded the name of the constituency, the date of counting and a brief description of its content.
(6) The returning officer shall then place all the declarations in Form 13A which he has found to be in order in a separate packet which shall be sealed before any cover in Form 13B is opened and on which shall be recorded the particulars referred to in sub-rule (5).
(7) The covers in Form 13B not already dealt with under the foregoing provisions of this rule shall then be opened one after another and the returning officer shall scrutinise each ballot paper and decide the validity of the vote recorded thereon.
(8) A postal ballot paper shall be rejected — [(a) if it bears any mark (other than the mark to record the vote) or writing by which http://www.judis.nic.in 104/130 ELP.No.8 of 2016 the elector can be identified; or] 2 [(aa)] if no vote is recorded thereon; or
(b) if noted are given on it in favour of more candidates than one; or
(c) if it is a spurious ballot paper; or
(d) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or
(e) if it is not returned in the cover sent along with it to the elector by the returning officer.
(9) A vote recorded on a postal ballot paper shall be rejected if the mark indicating the vote is placed on the ballot paper in such manner as to make it doubtful to which candidate the vote has been given.
(10) A vote recorded on a postal ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.
(11) The returning officer shall count all the valid votes given by postal ballot in favour of each candidates, record the total thereof in the result sheet in Form 20 and announce the same.
(12) Thereafter, all the valid ballot papers and all the rejected ballot papers shall be separately bundled and kept together in a packet which shall be sealed with the seals of http://www.judis.nic.in 105/130 ELP.No.8 of 2016 the returning officer and of such of the candidates, their election agent or counting agents as may desire to affix their seals thereon and on the packet so sealed shall be recorded the name of the constituency, the date of counting and a brief description of its contents.]
117. In this connection, on completion of arguments, this Court had reserved the Election Petition on 18.12.2019 for pronouncing judgment. However, on perusal of the records, the matter was again listed on 03.01.2020, and the following order was passed;
“2. The main ground on which the petitioner had filed the present Election Petition challenging the results declared on 19.05.2016 holding the first respondent as the successful returned candidate for the 159-Kattumannarkovil (SC) Assembly Constituency is that 1(one) postal ballot was rejected for the reason 'no marking' and 101 (one hundred and one) postal ballots were returned for the reason 'voter unidentified'. It is stated that rejection of such postal ballots was wrong and the Returning Officer should have taken those postal ballots into account and should have counted them and then declared the results. It had been pointed out that the margin of difference http://www.judis.nic.in 106/130 ELP.No.8 of 2016 between the successful candidate / first respondent and the petitioner herein was 87 votes.
3. During the course of trail, the petitioner herein had filed an application to summon as Court witness CW-1 R.Muthukumaraswamy, the then Returning Officer of Kattumannarkovil Assembly Constituency for the Election held on 16.05.2016. The application was allowed and the witness was also examined. However, neither the petitioner nor the first respondent had taken any steps to call upon the said witness to produce the rejected 102 postal ballots.
4. I am of the considered view that a decision can be rendered in the Election Petition only if the Court peruses for its own satisfaction, the 102 postal ballots which have been rejected by the Returning Officer.
5. Delivering a Judgment on merits without examining the same would not be just and fair and even though the parties have deliberately and for reasons only known to them have shirked their responsibility of seeking production of 102 postal ballots, in order to do complete justice, I hold that this Court should peruse the same.
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6. This order is passed only to satisfy the mind of the Court with respect to the reasons for rejections of the said 102 postal ballots. Consequently, the Registry is directed to issue summons to CW-1 R.Muthukumaraswamy, son of T.Rajasekaran, No.A-16, Ragamaliga Aparments, Medavakkam, Chennai – 600 073 to appear before this Court on 20.01.2020 at 2.15 p.m., and direct the said witness to produce the 102 postal ballots which had been rejected for the reasons as aforesaid.”
118. Thereafter, on 10.01.2020, the matter was listed under the caption “For being mentioned” pursuant to a letter given by the learned Standing Counsel for the Election Commission of India. The following is the order passed on 10.01.2020;
“2.The learned counsel pointed out that this Court had directed CW-1, Muthukumaraswamy, son of Rajasekaran, No.A-16, Ragamaliga Apartments, Medavakkam, Chennai – 600 073 to appear before this Court on 20.01.2020 at 2.15 P.M., and had directed the said witness to produce 102 postal ballots, which had been rejected for http://www.judis.nic.in 108/130 ELP.No.8 of 2016 the stated reasons.
3.He further stated that the Officer Mr.R.Muthukumaraswamy, is transferred to Krishnagiri District and posted as Special District Revenue Officer, National Highways and the present Returning Officer is Mr.P.Vijayaraghavan, S/o. S.Ponnuraj, Assistant Commissioner (Excise)/Returning Officer, 159, Kattumannar Koil Assembly Constituency.
4.Considering the above submissions, Registry is directed to issue notice to the present Returning Officer Mr.P.Vijayaraghavan, S/o. S.Ponnuraj, Assistant Commissioner (Excise)/Returning Officer, 159, Kattumannar Koil Assembly Constituency to appear before this Court on 21.01.2020 at 2.15 p.m., and he is directed to produce 102 postal ballots with respect to the 159-Kattumannarkoivil (SC) Constituency for the said Election held in the year 2016.”
119. On 21.01.2020, the following order was passed:
“Mr.P.Vijayaragavan, Assistant Commissioner (Excise) @ Returning Officer, Cuddalore, Mr.M.Tamil Selvan, Tahsildar (ARO), Kattumannarkoil and Mr.K.Jayaraman, Head http://www.judis.nic.in 109/130 ELP.No.8 of 2016 Constable, Kattumannarkoil Police Station are present today. As per the direction of this Court 102 postal ballots have been brought in a sealed trunk.
2. The learned counsel for the election petitioner, the learned Senior Counsel for the first respondent and the earned counsel for the Election Commission of India are also present.
3. The Postal ballots had been kept in a sealed trunk. The seal has been broken by the Court Officer in open Court. The cover containing the 102 postal ballots were opened in the presence of the Returning Officer. Form No.13C contains Form 13A and 13B. Form 13A is the attestation form from Gazetted Officer.
4. The Court perused each one of the postal ballot paper which have been taken out from the 13C form. It is seen that attestation is not found in most of the 13A forms. There was one yellow colour 13C cover but the official colour is said to be pink. Even if 13A form is available, it does not have any attestation and also 13B is also not available in some of the forms. If the attestation is there, in some of the covers, the ballot papers are not available. There is one ballot paper in which nothing is marked. As a sample, one of the attestation form has been shown to the learned counsel for the petitioner to http://www.judis.nic.in 110/130 ELP.No.8 of 2016 verify that there is no attestation. The entire 101, 13C covers in which the attestation form 13A(without attestation) were kept had been perused by the Court between 4.20 to 4.55 p.m. A sample of the attestation forms were also shown to the learned counsel for their perusal. There were only 10 13A declaration forms but not all of them were not attested. The said forms/ ballot papers/ declaration forms have been perused by the Court.
5.The ballot papers were again put into the paper envelop which was covered with a cloth and the same was tied and sealed in five places by the Assistant Registrar, Original Side II. The sealed bundle was then put back into the trunk which was locked and sealed and handed over to the Returning Officer who is accompanied by the Thasildar (ARO), Kattumannarkoil and Head Constable, Kattumannarkoil Police Station in the presence of the learned counsel for the election petitioner, the learned Senior Counsel for the respondent and learned counsel for the Election Commissioner of India.
6.The matter was earlier reserved for verdict and thereafter was reopened for the perusal of these ballot papers. Today, the ballot papers and covers have been perused and the matter is once again reserved for judgment.” http://www.judis.nic.in 111/130 ELP.No.8 of 2016
120. In 2004 2 SCC 759, Ram Phal Kundu V. Kamal Sharma, the Honourable Supreme, while examining whether the handbook for Returning Officers would have a over riding effect, held as follows:
“18. The learned counsel for the respondent has submitted that Form B of Bachan Singh did not reach the Office of the Chief Electoral Officer and, therefore, there was no valid nomination of his. The High Court has gone to the extent of saying that though Bachan Singh had submitted Form A and Form B along with his nomination paper before the Returning Officer but no Form A in respect of his candidature was submitted by him to the Chief Electoral Officer and, therefore, the same would not have the effect of rescinding the candidature of Kamal Sharma. Learned counsel for the respondent has also referred to the amendment in the Handbook for Returning Officers by which para 10.3(i) was substituted by the following sub-para:
“Nomination paper filed by a candidate in which he has claimed to have been set up by a recognised national or State party and which is subscribed by only one elector as proposer will be rejected, if a notice in writing to that effect has not been delivered to the Returning Officer of the constituency and the Chief Electoral Officer of the State by an authorised http://www.judis.nic.in 112/130 ELP.No.8 of 2016 office-bearer of that political party by 3.00 p.m. on the last date for making nominations. (Notice in Form ‘A’ is required to be submitted to the Chief Electoral Officer and the Returning Officer concerned and notice in Form ‘B’ is to be submitted to the Returning Officer.)” 18.1. On the basis of the above amendment of the Handbook, it has been urged that Form B was also required to be submitted to the Chief Electoral Officer and as the same had not been done by Bachan Singh, his candidature could not be regarded as valid.
19. We are unable to accept the submission made.
The requirement of paras 13 and 13-A of the Symbols Order is that Form B should be submitted to the Returning Officer. There is no requirement of the submission of the said form to the Chief Electoral Officer. The Handbook for Returning Officers contains instructions which have been issued by the Election Commission for the smooth holding of the election and being merely instructions cannot override the provisions of the statute, rules or the order. In fact in the very first para of the first page of the Handbook in Chapter I titled as “PRELIMINARY” it is written as under:
“However, please note that this Handbook cannot be treated as exhaustive in all respects and as a substitute for various provisions of election law governing the conduct of election.” http://www.judis.nic.in 113/130 ELP.No.8 of 2016
121. In Ramesh Rout v. Rabindra Nath Rout, (2012) 1 SCC 762, it was held as follows:
“14. … The Handbook, as it states, has been designed to give to the Returning Officers the information and guidance which they may need in performance of their functions; to acquaint them with up-to-date rules and procedures prescribed for the conduct of elections and to ensure that there is no scope for complaint of partiality on the part of any official involved in the election management. We shall refer to the relevant provisions of the Handbook a little later. The Handbook does not have statutory character and is in the nature of guidance to the Returning Officers.”
122. This judgment had been affirmed by the Honourable Supreme Court in 2012 4 SCC 194, Jitu Patnaik V. Sanatan Mohakud and others, wherein, after extracting the above passage, the Honourable Supreme Court held as follows:
39. In view of the above legal position that the Handbook does not have statutory character and there being no non-compliance http://www.judis.nic.in 114/130 ELP.No.8 of 2016 with the provisions of the Constitution or the 1951 Act or any Rules framed or orders made under the 1951 Act by the Returning Officer insofar as the death of an independent candidate was concerned, the averments made in Para 7(A) of the election petition do not furnish any cause of action for declaring the election of the returned candidate to be void under Section 100(1)(d)(iv). The High Court seriously erred in holding otherwise and ordering trail of the election petition on the pleadings set out in Para 7(A).
123. In 2014 5 SCC 312, Arikala Narasa Reddy V. Venkata Ram Reddy Reddygari and Another, the Honourable Supreme Court also held as follows with respect to the instructions contained in the handbook for the Returning Officers:
“32. It is a settled legal proposition that the instructions contained in the Handbook for Returning Officer are issued by the Election Commission in exercise of its statutory functions and are therefore, binding on the Returning Officers. Such a view stands fortified by various judgments of this Court in Ram Sukh v. Dinesh Aggarwal [(2009) 10 SCC 541] and Uttamrao Shivdas Jankar v. Ranjitsinh http://www.judis.nic.in 115/130 ELP.No.8 of 2016 Vijaysinh Mohite Patil [(2009) 13 SCC 131] . Instruction 16 of the Handbook deals with cases as to when the ballot is not to be rejected. The Returning Officers are bound by the Rules and such instructions in counting the ballot as has been done in this case.”
124. In the instant case, the complaint by the learned counsel for the Election Petitioner is that the Returning Officer had not followed the instructions as given in Rule 15.15.4(15) of the handbook for the Returning Officers. In Rule 15.15.4(15) of the handbook, it had been provided that if the victory margin is less than the total number of postal ballots received then there should be a mandatory re-verification of all postal ballots. The word used is “re-verification” and not “recounting”. This has to be contrasted with the provision as laid down in the Representation of the People Act, 1951 and the Conduct of Elections Rules, 1961 which alone have statutory value and upheld as intra- virus the Constitution. The Conduct of Elections Rules, 1961, had been published in the Gazette of India on 15.04.1961. They have come into force from 25.04.1961.
125. Rule 54(A) which has been extracted above relate to http://www.judis.nic.in 116/130 ELP.No.8 of 2016 counting of votes received by post. Rule 54(A)(4) is again extracted below:
“Rule 54(A)(4). If the said declaration is not found, or has not been duly signed and attested, or is otherwise substantially defective, or if the serial number of the ballot paper as entered in it differs from the serial number endorsed on the cover in Form 13-B, that cover shall not be opened, and after making an appropriate endorsement thereon, the returning officer shall reject the ballot paper therein contained.”
126. It is very specifically given that if the declaration is not found or has not been duly signed and attested, or is otherwise substantially defective, then the cover shall not be opened and the Returning Officer shall reject the ballot paper. The language used is clear and precise. The Returning Officer has no other option but to reject the ballot paper if the form containing the attestation is improper in any manner whatsoever. As stated in the order dated 03.01.2020, this Court had also undertaken the extraordinary exercise of suo motto summoning the 102 postal ballot papers which had been rejected and in the presence of the learned counsel for the Election Petitioner and the learned Senior counsel for the 1st http://www.judis.nic.in 117/130 ELP.No.8 of 2016 respondent, in open Court had re-verified the 102 postal ballot papers. Re-verification of the entire postal ballots would be of no avail, since no complaint has been received on that ground. Therefore, I hold that no prejudice has been caused to the Election Petitioner.
127. To satisfy the conscious of the Court, this Court had suo motto called for the entire 102 postal ballots and perused them, as stated supra, in the presence of the learned counsel for the Election Petitioner and in the presence of the learned Senior Counsel for the 1st respondent. A sample of the attestation forms was also shown to the learned counsels for their perusal. The declaration forms were not at all in proper form. When the declaration forms were not in proper form, the rules prescribed, that the cover containing the ballot paper should not opened. This has also been affirmed by P.W- 2 himself. He knew the procedure to be followed. He knew that the proper procedure was followed. The fact that there were improper declaration forms have been exhibited to all concerned in open Court. It is pointed out that among the ballot papers produced, there was one ballot paper without any marking which related to an other constituency. But that has no significance. The position of law on this aspect is clear. Rule 15.15.4(15) of the handbook only http://www.judis.nic.in 118/130 ELP.No.8 of 2016 provides for reverification. Reverification of all the postal ballots is not necessary, since, this Court cannot embark on a roving inquiry. The complaint is only with respect to only 102 postal and in the presence of the learned counsel for the Election Petitioner, the Court had reverified the postal ballots which were rejected and it was apparent that the attestation forms were improper. Therefore, I hold that again no prejudice has been caused to the Election Petitioner. A re-appraisal of the evidence shows, that PW-2, M.Dhanakodi, himself had accepted that the cover containing the postal ballot cannot be opened, if the declaration form is not in order. That the declaration forms were not in order had been established on personal verification by the Court and on verification by the counsels also. Therefore, I hold that no prejudice has been caused and therefore, this issue is answered against the Election Petitioner.
Issue No.5:
128. This issue relates to the entire sequence of the counting of over all votes. The Election Petitioner has complained that during the counting on 19.05.2016, the paper trail of EVM.No.L14732 in booth No.81, Kaliyamalai Village, was taken into consideration, since it was alleged that the EVM.No.L14732 was malfunctioning http://www.judis.nic.in 119/130 ELP.No.8 of 2016 and it was also complained that 102 postal ballots were rejected without any proper reason. The entire evidence with respect to both the allegations have been examined in detail above and this Court had answered the issues against the Election Petitioner.
129. In 2009 1 SCC 633, Baldev Singh Mann V. Surjit Singh Dhiman, the Honourable Supreme Court had stated as follows:
“20. A three-Judge Bench of this Court in Jeet Mohinder Singh v. Harminder Singh Jassi [(1999) 9 SCC 386] has held that: (SCC p. 409, para 40) “(i) The success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of the election process has to be safeguarded and the court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves an http://www.judis.nic.in 120/130 ELP.No.8 of 2016 enormous load on the public funds and administration.” Similar opinion has been expressed in Jagan Nath v. Jaswant Singh [AIR 1954 SC 210 : 1954 SCR 892] and Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe [(1995) 5 SCC 347] . The will of the people who have exercised their franchise in an election in favour of a returned candidate must be respected to protect the interest of the returned candidate.”
130. In 2014 5 SCC 312, Arikala Narasa Reddy V. Venkata Ram Reddy Reddygari and Another, the Honourable Supreme Court had held as follows:
“13. It is a settled legal proposition that the statutory requirements relating to election law have to be strictly adhered to for the reason that an election dispute is a statutory proceeding unknown to the common law and thus, the doctrine of equity, etc. does not apply in such dispute. All the technicalities prescribed/mandated in election law have been provided to safeguard the purity of the election process and the courts have a duty to enforce the same with all rigours and not to minimise their operation. A right to be elected is neither a fundamental right nor a common http://www.judis.nic.in 121/130 ELP.No.8 of 2016 law right, though it may be very fundamental to a democratic set-up of governance. Therefore, answer to every question raised in election dispute is to be solved within the four corners of the statute. The result announced by the Returning Officer leads to formation of a Government which requires the stability and continuity as an essential feature in election process and therefore, the counting of ballots is not to be interfered with frequently. More so, secrecy of ballot which is sacrosanct gets exposed if re-counting of votes is made easy. The court has to be more careful when the margin between the contesting candidates is very narrow. “Looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots must be avoided, as it may tend to a dangerous disorientation which invades the democratic order by providing scope for reopening of declared results”. However, a genuine apprehension of miscount or illegality and other compulsions of justice may require the recourse to a drastic step.”
131. It had been further held as follows:
“15. This Court has consistently held that the court cannot go beyond the pleadings of the http://www.judis.nic.in 122/130 ELP.No.8 of 2016 parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality, the result of the election has been “materially affected”. There can be no dispute to the settled legal proposition that “as a rule relief not founded on the pleadings should not be granted”. Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. In the absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings. The court cannot exercise discretion of ordering re-counting of ballots just to enable the election petitioner to indulge in a roving inquiry with a view to fish material for declaring the election to be void.” http://www.judis.nic.in 123/130 ELP.No.8 of 2016
132. In 2012 3 SCC 236, Markio Tado V. Takam Sorang and Others, the Honourable Supreme Court had held that a fishing and roving inquiry cannot be permitted to improve the case of the petitioner. On the facts of that case, wherein, the 1st respondent therein had filed an application to call for the records of the voter's register, to establish material with respect to allegations of booth-
capturing or impersonation, the Honourable Supreme Court held as follows:
“27. It is thus obvious that having failed to place any material with respect to either booth-capturing or impersonation, the first respondent was trying to make fishing and roving inquiry to improve his case by calling for the record of the voters' register from Itanagar Constituency, in support of his grievance of double voting. In the absence of any evidence with respect to the persons who at the instance of the appellant allegedly captured the booths or made double voting or impersonation in Tali Constituency, no such inference could have been drawn against the appellant. The learned Single Judge, therefore, was clearly in error in allowing the second application made by the first respondent.
28. Besides, the ground of improper reception requires a candidate to show as to http://www.judis.nic.in 124/130 ELP.No.8 of 2016 how the election insofar as it concerns the returned candidate was materially affected, in view of the requirement of Section 100(1)(d) of the 1951 Act. ........”
133. In the instant case, the issues relating to both the date of polling and the date of counting have been elaborately discussed.
There has been no examination of a direct witness/polling agent Ganeshamoorthy has not been examined as a witness, even though, the Election Petitioner in his evidence stated that it was the said individual who had given information over telephone about the malfunctioning of the EVM in booth No.81, Kaliyamalai Village. The said Ganeshamoorthy was not even mentioned as a witness in the two lists presented by the Election Petitioner.
134. The Honourable Supreme Court held that the paper trail is an acceptable piece of methodology to be followed in Subramanian Swamy cited supra 2013 10 SCC 500
135. Rule 15.15.4(15) of the handbook for the Returning Officers only stipulate that there should be a re-verification, in case, the margin of victory is less than the total number of postal ballots http://www.judis.nic.in 125/130 ELP.No.8 of 2016 received. This Court had suo motto called for the rejected postal ballots and had verified them in the presence of the learned counsel for the Election Petitioner and the learned Senior Counsel for the 1st respondent. It had been found that as a fact, the Declaration Forms were improper. As a matter of fact, in most, they have not been filled up at all. In view of the these facts, I hold that the entire sequence of counting of the overall votes took place in a proper manner and this issue is also answered against the Election Petitioner.
Issue No.6:
136. In view of the above discussion, I hold that the Election Petition necessarily has to suffer an order of dismissal.
137. Section 119 of the Representation of the People Act, 1951 is as follows:
“119.Costs:- Costs shall be in the discretion of the High Court:
Provided that where a petition is dismissed under clause (a) of Section 98, the returned candidate shall be entitled to the costs http://www.judis.nic.in 126/130 ELP.No.8 of 2016 incurred by him in contesting the petition and accordingly the High Court shall make an order for costs in favour of the returned candidate.”
138. In Section 121 of the Representation of the People Act, 1951, it had been stated that the costs should be paid out of the security deposit. The Election Petitioner has deposited a sum of Rs.2,000/- (Rupees Two Thousand only) as security for costs as stipulated under Section 117 of the Representation of the People Act, 1951. The said amount is directed to be paid to the 1 st respondent as costs.
139. I would however place on record my deep appreciation for the sanguine and extremely professional manner in which the learned counsels, Mr.K. Balakrishnan and Mr.D. Ferdinand for the Election Petitioner and the learned Senior Counsel, Mr.T.V. Ramanujun and the learned counsels on record for the 1st respondent, Mr.C. Jagadish, Mr.S. Senthil and Mr.N.C. Ashok Kumar conducted themselves. I also understand that the Election Petitioner has been now elected as a Member of Parliament in the Parliamentary Elections held in the year 2019. The Court wishes http://www.judis.nic.in 127/130 ELP.No.8 of 2016 him well.
The Conclusion:-
140. In the result, the Election Petition is dismissed. Costs of Rs.2,000/- (Rupees Two Thousand only) is to be paid out of the security already deposited by the Election Petitioner to the 1st Respondent.
07.02.2020 smv Index : Yes/No Internet : Yes/No Speaking order : Yes/No Note: Issue order copy 07.02.2020 http://www.judis.nic.in 128/130 ELP.No.8 of 2016 C.V.KARTHIKEYAN,J.
smv To The Returning Officer, 159, Kattumannarkoil (SC) Assembly Constituency and Asst. Commissioner (Excise) Cuddalore.
Pre-delivery order made in ELP.No.8 of 2016 http://www.judis.nic.in 129/130