Madras High Court
Pr.Manoharan vs Anitha R.Radhakrishanan on 29 March, 2016
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.03.2016 CORAM THE HON'BLE MR.JUSTICE K.RAVICHANDRABAABU ELECTION PETITION No.8 of 2011 PR.Manoharan ...Petitioner VS 1.Anitha R.Radhakrishanan 2.N.Rameswaran 3.B.Deva Gnana Sigamani 4.K.Sudalaikannu 5.N.Nattar 6.C.Arigopalakrishnan 7.A.Chithiralingam 8.V.Chidambaram 9.C.Chellasamy 10.M.Thirupathi 11.A.Nandhakumar 12.P.Mani 13.S.Muthumalai 14.B.Murugesan 15.P.Rajkumar (R16-The District Election Officer and District Collector, R17-The Returning Officer,Revenue Divisional Officer-Struck off from the array of respondents as per the order of this Hon'ble Court dated 29.11.2012 made in O.A.Nos.964 and 966 of 2012 in ELP No.8 of 2011) ..Respondents Prayer: Election petition filed under section 80,82,83,84, 100(1)(b)(d)(iii) & (iv) and 101 of the Representation of People Act 1951, and Rules 54 and 54(A) of the Conduct of Election Rules 1961 and Rule 2 of Madras High Court Election Petition Rules 1967, praying to i) declare the election of the Returned Candidate, namely the first respondent herein from No.215, Thiruchendur Assembly Constituency, Tamil Nadu, in election held on 13.04.2011 (in which results have been declared on 13.05.2011) as void; ii) order Re-scrutiny of the voting results recorded in the 210 Electronic voting Machines used for counting in No.215, Thiruchendur Assembly Constituency (Tamilnadu) in the election held on 13.05.2011. iii) order re-polling of 891 postal ballot by the voters to whom those 891 postal ballot papers have been issued by the Returning Officer No.215, Thiruchendur Assembly Constituency (Tamilnadu) in the election held on 13.05.2011, the address of which voters are with the Returning Officer and consequently order counting of those postal ballot papers after repolling and declare the results of the same; iv) declare the petitioner as duly elected as a member of the Tamilnadu Legislative Assembly from No.215, Thiruchendur Assembly Constituency (Tamilnadu) in the election held on 13.04.2011 (in which results have been declared on 13.05.2011) and v) direct the first respondent to pay the costs of this election petition. For Petitioner : Mr.S.Thangavel For Respondents : Mr.UM.Ravichandran for R1 O R D E R
This election petition is filed seeking for the following reliefs:
i) declare the election of the Returned Candidate, namely the first respondent herein from No.215, Thiruchendur Assembly Constituency, Tamil Nadu, in election held on 13.04.2011 (in which results have been declared on 13.05.2011) as void;
ii) order Re-scrutiny of the voting results recorded in the 210 Electronic voting Machines used for counting in No.215, Thiruchendur Assembly Constituency (Tamilnadu) in the election held on 13.05.2011.
iii) order re-polling of 891 postal ballot by the voters to whom those 891 postal ballot papers have been issued by the Returning Officer No.215, Thiruchendur Assembly Constituency (Tamilnadu) in the election held on 13.05.2011, the address of which voters are with the Returning Officer and consequently order counting of those postal ballot papers after repolling and declare the results of the same;
iv) declare the petitioner as duly elected as a member of the Tamilnadu Legislative Assembly from No.215, Thiruchendur Assembly Constituency (Tamilnadu) in the election held on 13.04.2011 (in which results have been declared on 13.05.2011) and
v) direct the first respondent to pay the costs of this election petition.
2.The first respondent who is the Returned Candidate filed an Original Application No.748 of 2012 for rejection of the election petition by raising very many grounds. On 16.09.2013, this Court disposed of the said application by passing a detailed order of which the operative portion at paragraph No.38 reads as follows:
"38.In view of the above discussion of facts and law, the application in O.A.No.748 of 2012 is disposed of as follows:-
(a) The averments contained in paragraph Nos.6,7, 24 and 25 of the Election Petition do not disclose a cause of action to maintain the election petition and thus, they are rejected as not maintainable under Order 7 Rule 11 CPC.
(b) The averments contained in all other paragraphs disclose a cause of action for maintaining this election petition and hence the election petition is held maintainable based on the averments contained in those paragraphs."
3.It is seen that the said order has become final and conclusive and no further appeal is filed against the same. Consequent upon the said order passed by this court, the election petition with its retained paragraphs deals with allegations only with regard to the postal ballot papers and contemporaneous records maintained by the Officer. In so far as such allegations are concerned, the case of the election petitioner is as follows:
(a) The Returning Officer has not kept the postal papers (covers) received by him in safe custody until the commencement of votes and that no contemporaneous records with break up details of the postal papers have been maintained by him. After the election held on 13.04.2011, the first respondent collected almost all the postal ballot papers from the eligible candidates with signature alone from them through his agents by corrupt practice of bribing the eligible voters. Thereafter, the first respondent later endorsed the tick marks in the postal ballot papers through his agents and got them attested by only three or four attesters.
(b) A verification of the ink used by the voters for putting their signatures and for making the tick marks in the postal votes clearly establish the corrupt practice by the first respondent. Since the postal votes in favour of the first respondent are not genuine and are spurious ballot papers, they cannot be taken into account.Thus, the first respondent has indulged in canvassing of postal voters, which is prohibited after 11.04.2011.
(c) Regarding the postal ballot papers, no contemporaneous record as provided under Rule 23 of the Conduct of Election Rules, 1961 have been prepared and maintained by the 17th respondent and he has also not complied with the provisions contained in Rule 23(6) of the Conduct of the Election Rules, 1961. Further, the 16th respondent under whose custody the election records kept, has not maintained contemporaneous records for the receipt and safe custody of it. These failures on the part of the election officers materially affected the result of the election.
(d) The counting of postal ballot paper votes was not done on 13.05.2011 at 8.00 a.m. as provided in Rule 54 A of the Conduct of the Election Rules, 1961 and that the postal ballot papers were not dealt with before counting the votes in the electronic voting machines. The cover in Form-13 C were not shown to the counting agent of the petitioner, before they were opened for verification. Further, the mandatory provisions contained in Rule 54A(4) were not followed during the counting of postal ballot papers. The counting of the postal ballot papers is not done in accordance with the provisions of law and irregular procedure adopted by the 17th respondent has vitiated the result of the election. The scrutiny of the rejected ballot papers would evidence the fact that they have all been procured by him or through his party workers with their consent by adopting corrupt means.
(e) The Returning Officer, at the instance of the first respondent, have rejected the complaint given by the petitioner with regard to the irregularity in counting the votes of Booth No.93, without assigning valid reasons, which affected the result of the election. Further, the postal votes collected by one of the agents of the first respondent was totally rejected since they were attested by the Headmaster of a Middle School. The authentication of the postal ballot papers were not verified with the prescribed register maintained by the Returning Officer for keeping the track of postal ballot papers.
(f) The postal ballot papers were not issued to the voters as per Rule 23 of the Conduct of Election Rules, 1961 and that the recording of vote was not done and the elector has not signed the declaration as per Rule 24 of the said Rules. The return of the postal ballot papers is not in accordance with Rule 27 of the Conduct of the Election Rules.
g) Some of the postal ballot papers for No.215, Thiruchendur Assembly Constituency contains ballot papers other than in pink colour, which is contrary to Rule 22 of the conduct of Election Rules, 1961.
h) The objections to the counting of the electronic voting machine for Booth No.93 since it was found that the button for closing the voting was not operated, was rejected by the Returning Officer.
4.The first respondent filed a counter affidavit denying the allegations made by the election petitioner wherein the contention of the first respondent in so far as the postal ballot papers and contemporaneous records are as follows:
The allegation of obtaining the ballot papers from eligible voters with their signature alone by corrupt practice of bribing them is false and frivolous. The allegation that after collecting the postal ballot papers, the first respondent later endorsed the tick mark in the postal ballot papers through his agents are denied as false. The maintenance of records by 16th and 17th respondent for postal ballots are the matters concerned with the election officers and this respondent has no role to play for the same and he has no personal knowledge about the same and it is for the petitioner to prove his allegation. The allegations made by the election petitioner with regard to the the postal ballot papers and contemporaneous records are totally denied as false, since they were made without any substance. Further, the election petitioner has not produced any material to substantiate his claim and to prove his allegation. To the knowledge of this respondent, the election officers followed all rules and regulations and norms for the conduct of election.
5.Based on the above said pleadings, this court framed the following issues:
"1. Whether the 1st respondent used corrupt practice of bribing in procuring postal ballot papers from the eligible voters with their signatures alone ?
2. Whether the allegation that the postal ballot papers collected from the eligible voters with their signatures alone were attested only by three or four attestors ?
3. Whether the ink used by the voters for putting their signatures and the ink used for making the tick marks in the postal votes are the same or different ?
4. Whether contemporaneous records as provided for under Rule 23 of the Conduct of Election Rules, 1961 had been prepared and maintained by the District Election Officer and Returning Officer regarding the postal ballot papers ?
5. Whether provisions contained in Rule 23(6) of the Conduct of Election Rules, 1961 had been complied with by the Returning Officer?
6. Whether the counting of postal ballot paper votes was done as provided for under Rule 54A of the Conduct of Election Rules, 1961 ?
7. Whether the Returning Officer, the 17th respondent had scrutinised the declaration in Form 13A contained in each cover as provided for in Rule 54A (3) of the Conduct of Election Rules, 1961 ?
8. Whether the entire postal ballot votes procured by one of the agents of the 1st respondent were rejected because of the fact that they were attested by the very same Headmaster of a Middle School ?
9. Whether Rules 23 and 24 of the Conduct of Election Rules, 1961 had been complied with relating to the postal ballot votes ?
10. Whether the Instruction No.4.3 of the instructions issued by Election Commission of India in accordance with Rule 27 of the Conduct of Election Rules, 1961 had been complied with and the postal ballot papers were issued in the prescribed colour ?
11. Whether the counting of electronic voting machine for booth No.93 was done properly and the rejection of the objections to the said counting machine by the Returning Officer is proper and justified?
12. Whether the election petition does not set forth full particulars of any corrupt practice including as full a statement as possible with the names of the parties alleged to have committed such corrupt practice and the date and place of commission of each such corrupt practice as required under section 83 of the Representation of the People Act (hereinafter the Act)?
13. Whether the election petition, in so far as it invokes section 100(1)(b)(d), (iii) &(iv) and 101 of the Act, does not contain averments/allegations regarding the essential ingredients of either section 100(1)(b)(d), (iii) and (iv) and 101 of the Act, and does not provide particulars in support of the averments/ allegations?
14. Whether the election petition does not satisfy the requirements of sections 80,83,100 and 123 of the Act ?
15. Whether any or all the allegations contained in paragraph 12 of the election petition is/ are true and without pleadings of material particulars and even if any or all of the allegations is / are true, whether it would constitute a corrupt practice and whether it would constitute a ground to declare the election of the first respondent void ?
16. Whether the allegations/ averments contained in the Election Petition constitute a corrupt practice within the meaning as defined in Section 123 of the Act ?
17. Whether the election petitioner gave a valid application for recount in accordance with Rule 63 of the Conduct of Election Rules, 1961 and if so, whether the Election Petitioner is entitled for the relief as claimed by them in the Election Petition with regard to the alleged repolling and re-counting ?
18. To what relief the petitioner is entitled to ?"
6.On the side of the election petitioner, he examined himself as PW1. The election petitioner, earlier, after examining himself in chief partly, filed an Application No.877 of 2014 for summoning the following documents for marking them as Exhibits:
"(a)The postal ballot papers in respect of No. 215, Thiruchendur Assembly Constituency (TamilNadu) for the election held on 13.04.2011.
(b) The contemporaneous records provided for under Rule 23 of the Conduct of Election Rules, 1961 prepared and maintained by the District Election Officer and returning Officer regarding the postal ballot papers in respect of the election held on 13.04.2011 for No.2015, Thiruchendur Assembly Constituency (Tamilnadu).
(c) The register maintained regarding the issuance of postal ballot papers and Form Nos. 13A to 13D.
(d) The Form No. 20."
7.The said application was stoutly contested and opposed by the first respondent. This court after hearing both parties, passed a detailed order on 09.03.2016, rejecting the said application. Paragraph Nos.12 to 17 of the said order, which are relevant for the purpose of deciding this election petition, read as follows:
"12. The allegations made by the petitioner with regard to the postal ballot papers, in nutshell, are that the respondent No. 1 collected almost all the postal ballot papers from the eligible candidates with their signature alone, through his agents by corrupt practice of bribing them; that the respondent No. 1 after collecting the postal ballot papers endorsed the tick marks in the postal ballot papers through his agents and got them attested only by three or four attesters; that the verification of the ink mark used by the voters for putting their signatures and ink used for making tick mark in the postal vote would establish the corrupt practice used by the respondent No. 1.
13. In order to establish the above contentions, the election petitioner now seeks for production of those ballot papers before this Court to mark them as exhibits. There is no doubt to the fact that postal ballot papers once produced before this court and marked as evidence, would let lose the secrecy of voting through such postal ballot papers. But at the same time, this Court cannot ignore that the entire allegation of the election petitioner challenging the election of the respondent No. 1 rests on the postal ballot papers. Therefore, the election petitioner has to first primafacie satisfy this Court that perusal of those postal ballot papers by this Court is very much essential in order to decide the dispute and to do complete justice between the parties.
14. Therefore, the election petitioner based on the allegation made by him has to lead evidence one by one accordingly commencing from his first allegation with regard to the postal ballot papers so as to derive the primafacie satisfaction of this Court for adducing further evidence on the subsequent or follow up allegation. Perusal of the averments made by the election petitioner as extracted supra would undoubtedly show that his first allegation is that the 1st respondent collected almost all the postal ballot papers from the eligible candidates with their signature alone, through his agents by corrupt practice of bribing those voters. Therefore, in order to establish this first allegation, the election petitioner has to first examine those eligible persons who were holding the postal ballot papers from whom the 1st respondent has allegedly collected postal ballots through his agent that too only with their signature by bribing them. He must first succeed in this attempt. Only thereafter the election petitioner can proceed to lead evidence to establish his allegation that all the postal ballot papers alleged to have been collected by the respondent through his agents, were attested only by three or four attestors, by examining the relevant persons as witnesses. Admittedly, no such witness has been examined by the election petitioner so far to establish the above alleged events. The election petitioner alone was examined in part that too in chief and his further examination was not allowed to go on, including the cross-examination. On the other hand, after partly examining him in chief, this application is filed by him for summoning those documents. At this stage, therefore, this Court is not satisfied even primafacie that there is a compelling necessity for summoning the postal ballot papers, even for exclusive perusal of this Court. The election petitioner therefore ought to examine those persons first and without doing so, filing of this application, at this stage, for summoning the postal ballots cannot be entertained.
15. Insofar as, the next document sought to be summoned namely, the contemporaneous records are concerned, as rightly pointed out by the learned counsel appearing for the respondent No. 1, the election petitioner has not stated as to which are the specific documents forming part of the contemporaneous records need to be produced before this Court for examination. The averments made by the election petitioner with regard to the alleged non-maintenance of contemporaneous records is also vague in nature and therefore, this Court is not satisfied with regard to the claim of the petitioner for production of the contemporaneous records.
16. Likewise, the claim of the election petitioner for production of Register maintained regarding the issuance of postal ballot papers and Form Nos. 13A, 13B and 20 is concerned, this Court is of the view that unless the petitioner succeeds in his attempt in examining the persons from whom the respondent No. 1, through his agents, alleged to have collected the postal ballot papers, summoning of the above said documents is also not warranted at present.
17. Insofar as, the claim of the election petitioner for production of the complaint alleged to have been given by him on 13.05.2011 is concerned, as it is his own document, he should have had a copy of the same for marking it before this Court and therefore, the document namely the complaint alleged to have been given by him being not a document which is in the exclusive custody and control by the Election Officials, need not be summoned, especially when the 1st respondent states that no such complaint was given at all. Even otherwise such document should have been obtained much earlier and filed along with the election petition."
8.From the above order passed by this court, it is evident that the election petitioner is bound to lead evidence one by one commencing from his first allegation. Undoubtedly, such evidence cannot be confined by examining the election petitioner alone and on the other hand, the relevant parties connected with the allegations made in the election petition are also to be examined as third party witnesses. However after dismissal of the said application, P.W.1 submitted himself for further chief examination on 21.03.2016 and thereafter, he was cross-examined by the learned counsel appearing for the first respondent on the same day.
9.The sum and substance of the deposition of the election petitioner as P.W.1, is as follows:
(a) P.W.1 deposed in his chief examination that his agent informed him that the cover, which contained postal votes, was not sealed; the box which contained postal votes, was in open state on the date of counting and from that box, covers were taken and opened in the presence of his agents. He further deposed that the difference of votes between him and the first respondent is 640 votes, the total number of postal votes was 891 and that the postal ballots were collected in total and tick mark was made in all the postal ballots using the same ink. He further stated that in the postal ballots concerning the Thiruchendur Assembly Constituency, only 4 persons have attested all the postal ballots through which the first respondent secured postal votes. He was not informed the details of the Government servants, who had voted through postal ballots and the place from where the postal ballots were posted. He further stated that in all the 680 postal ballots polled in favour of the first respondent, the ink used to make tick mark in the relevant columns and the ink used to fill the details of the voters is one and the same. He further stated that he gave a complaint to the Returning Officer in writing, highlighting all the irregularities in the postal ballots. He further stated that at the time of opening of the postal ballots, he was not present but his 15 agents including Damodaran and Ashok were present; His Chief Agent Mr.Damodaran and Mr.Ashok from ARO table, informed him that some irregularities were being taken place in the postal ballots and therefore, they asked him to give a complaint. He further stated that on seeing the postal ballots in favour of the first respondent, they had their own suspicion that those postal ballots would have been created by forming four groups and that in so far as 680 postal ballots polled in favour of the first respondent is concerned, they suspected that it could have been done by forming four teams. He further stated that Ex.P1 is the notarized copy of Form 20 (learned counsel for the first respondent raised an objection to mark this document as Exhibit stating that this document is neither original nor certified copy.
(b) P.W.1 further deposed in continuation of his chief examination that with regard to postal ballots, the records were not properly maintained and hence, he tried to lodge a complaint through his agent but his complaint was not received and that in respect of postal ballots, the Returning Officer did not verify the authenticity of those postal ballots.
10.P.W.1 in his cross-examination stated that it is not correct to state that in his election petition, he has stated that the information regarding postal ballots was brought to his knowledge only by his party workers. He further stated that in his election petition, he has stated that his agent also gave a complaint to the Election Officer with regard to the regularities in Form-20 and that he do not have personal knowledge regarding the irregularities in Form-20 and that in the entire election petition, it was not specifically mentioned as to who received it, from whom it was received and at which place it was received. He further stated that he do not know personally what happened before 12.30p.m.; the postal ballots should be counted first and so, he gave a complaint for not counting postal ballots first however, he has not filed any document before this court in this regard. He further stated that it is incorrect to state that he has not stated in his election petition that the Election Officers did not receive his complaint. He further stated that on the day of filing this election petition, he came to this court in the morning and this election petition was filed in the afternoon and that he do not remember whether he took oath on the day of filing his election petition. He further stated that he denied that the election petition is not maintainable merely because he has not marked any documents.
11. Thereafter, the matter was adjourned to 29.03.2016 at the request of the learned counsel for the election petitioner for production of next witness. Accordingly, the matter is taken up today. However, the learned counsel appearing for the election petitioner submitted that there is no other witness to be examined on the side of the election petitioner and therefore, he is closing his side.
12.Learned counsel appearing for the first respondent submitted that since the election petitioner has not examined any other independent witnesses, there is no necessity for him to examine any witness from his side. Therefore, he submitted that he is also closing his side.
13.Heard Mr.S.Thangavel, learned counsel for the election petitioner and Mr.UM.Ravichandran, learned counsel for the first respondent and perused the materials placed before this court.
Findings with regard to Issue Nos.1 to 18:-
14.The core point for consideration arising out of all the above issues is as to whether the election petitioner has proved his case before this court by adducing sufficient evidence in support of such contention.
15.Needless to say that all the issues framed by this court can be answered only when the election petitioner produced sufficient evidence and substantiated his contention. In this case, except examining himself as PW1, he has not chosen to examine any other independent witnesses. When serious allegations are made in respect of postal ballot papers as referred supra, such allegations have to be proved necessarily by the election petitioner by examining the relevant persons as witnesses before this court. Mere examination of the petitioner himself is not sufficient in the absence of any other third party witnesses.
16.Even perusal of the evidence of PW1 also would only show that his allegation is based on hearsay. In any event this Court cannot take into consideration of his evidence alone for deciding the matter, as he is admittedly an interest witness, being the election petitioner himself. Therefore, it is all the more necessary for the election petitioner to prove his case by adducing third party independent witnesses. When the election petitioner has not chosen to examine any independent witnesses to substantiate his case, merely making an allegation in the pleading followed by his own examination alone is not sufficient for this court to arrive at a just and proper conclusion.
17.At this juncture, it is to be noted that during the trial of an election petition, a party to such proceedings cannot seek for a roving enquiry and on the other hand, such party must plead the material fact and adduce evidence to substantiate the same so as to enable the court to adjudicate upon the issue. Likewise, it is also well settled that in the absence of pleading any evidence let in cannot be considered so also in the absence of any evidence, in support of a pleading, such pleading cannot be held to be proved especially, when the same is denied and disputed by other side. The issues are framed only to see that no party is taken by surprise in the trial and only those issues should be addressed by the parties by letting in relevant evidence. In the decision of the Hon'ble Supreme Court reported in Kalyan Singh vs. C.P.Joshi, (2011) 11 SUPREME COURT CASES 786, it has observed at paragraph Nos.17 and 28 as follows:
"17.During the trial of an election petition, it is not permissible for the court to permit a party to seek a roving enquiry. The party must plead the material fact and adduce evidence to substantiate the same so that the court may proceed to adjudicate upon the issue. ..28.Therefore, in view of the above, it is evident that the party to the election petition must plead the material fact and substantiate its averment by adducing sufficient evidence. The court cannot travel beyond the pleadings and the issue cannot be framed unless there are pleadings to raise the controversy on a particular fact or law. It is, therefore, not permissible for the court to allow the party to lead evidence which is not in the line of the pleadings. Even if the evidence is led that is just to be ignored as the same cannot be taken into consideration."
In this case, except making allegations in the election petition and examining the election petitioner alone as the witness on his side, no other independent witness has been examined to substantiate such allegations. Therefore, there is no necessity for this court to call upon the other side to disprove the case of the election petitioner by adducing witness or evidence on their behalf. Rightly, the learned counsel appearing for the first respondent contended that there is no necessity for him to examine any witness on behalf of the first respondent. Therefore, this court is of the view that the election petitioner has miserably failed to prove his contentions in the election petition. Accordingly, all the issues are answered against the election petitioner. Consequently, the election petition fails and the same is dismissed. No costs.
29.03.2016
Index :Yes/No
Internet :Yes/No
vri
K.RAVICHANDRABAABU,J.
vri
Election Petition No.8 of 2011
29.03.2016