Madras High Court
Dr.P.Saravanan vs Bose A.K. (Deceased) on 22 March, 2019
Equivalent citations: AIRONLINE 2019 MAD 396
Author: P.Velmurugan
Bench: P.Velmurugan
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 29..10..2018
Pronounced on : 22..03..2019
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
ELP.No.2 of 2017
and OA.No.955 of 2018
Dr.P.Saravanan ... petitioner
Vs.
1. Bose A.K. (deceased)
2.M.Bose
3.R.Muthuraj
(The 2nd and 3rd respondents are impleaded as interested person
as per order dated 05.10.2018 made in OS.No.904 & 888 of 2018.)
4.Dhanapandiyan
5.Mayilsamy.N.
6.Srinivasan.R.
7.Mahadevan.ELA
8.Ramesh.S.
9.Jayaraman.M
10.Ahameed Abdul Khadhar @ Veerachozan
11.Alla Pitchai
12.Gopalakrishnan.K.S.
13.Gopalakrishnan.M.
14.Saravanan.R.
15.Thangapandi.P.
16.Damaodharan.S.L.
17.Dr.Padmarajan.K.
18.Korkao Palanisamy Kudumbar
19.Mahalingam.PON
20.Manmadhan.M
21.Mari.N.
22.Meenakshi Sundaram.S.
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23.Murugaiya.M.
24.Moorthi.K.
25.Mydeen Pitchai.H.
26.Mohan.S.
27.Rajkumar
28.Jagadish Kumar.R.
29.Jagaveeran.S.
(#)30.The Returning Officer/District Supply &
Consumer Protection Officer,
195.Thiruparankundram Assembly Constituency Cum
District Collector's Complex
Madurai.625 020.
(#)31.The District Electoral Officer/District Collector,
O/o.District Collector's complex,
Madurai 625 020.
(#)32. The Chief Electoral Officer of Tamil Nadu
Public (Elections) Department
Fort St.George, Secretariat,
Kamarajar salai, Chennai-9.
(#)33.The Chief Election Commissioner of India
Nirvachan Sadhan, Ashoka Road,
New Delhi – 110 011.
( [ # now respondents 30 to 33] then respondents 28 to 31 struck off
from the array of respondents as per the order of this Court dated
09.06.2017 made in OA.Nos.338 to 341 of 2017 in ELP.No.2 of 2017)
... respondents.
Prayer : Election petition is filed under Sections 81, 30, 33, 36(4),
36(6), 36(8), 100(1)(b), 100(1)(d)(i), 100(1)(d)(ii), 100(1)(d)(iv),
123(1)(A), 123(3) of The Representation of the People Act, 1951 and
Article 324 of the Constitution of India, Clause 13 of the Election
Symbols (Reservation and Allotment) Order 1968 r/w.2 of Rule of the
Madras High Court – Election Petition, 1967 to
(a)declaring the election of the 1st respondent as returned
candidate on 22.11.2016 from No.195, Thiruparankundram Assembly
Constituency as null and void
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(b)Award the cost of this petition and
(c)pass such further or other orders as this Court deem fit and
proper in the fact and circumstances of this case.
Prayer : Original Application in OA.No.955 of 2018 has been filed by
the election petitioner (a) to amend the paragraph 28 of the election
petition and to include the following at the end of para 28 “I state that
but for the votes obtained by the retuned candidate, namely, the 1st
respondent by corrupt practice, I would have obtained a majority of
valid votes. Under these circumstances, the election of the returned
candidate, the 1st respondent herein has to be declared void and
consequently this Court to declare the petitioner as duly elected to the
No.195, Thiruparankundram Assembly Constituency”. and
(b) to amend the paragraph 31(a) by deleting and substituting
the following : - “31(a).Declaring the election of the 1st respondent as
returned candidate on 22.11.2016 from No.195, Thiruparankundram
Assembly Constituency as null and void and consequently declare that
the petitioner has been duly elected to the No.195,
Thriuparankundram Assembly Constituency.”
For petitioner :Mr.V.Arun
For respondents :Mr.M.Vivekanandan for R2.
Mr.M.P.Saravanan for R3.
Mr.Niranjan Rajagopalan
for G.R.Associates for RR28 to 31.
JUDGMENT
This petition has been filed by the petitioner to declare the election of the 1st respondent as returned candidate on 22.11.2016 from No.195, Thiruparankundram Assembly Constituency as null and void.
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2. The crux of the election petition filed by the election petitioner are as follows :-
The Election Commission of India (herein after referred to as “ECI”) has issued a press note on 17.10.2016 for filling up of casual vacancies in the Assembly Constituencies of 6 States including Tamil Nadu announcing by-election schedule for 195.Thiruparankundaram Assembly Constituency in the State of Tamil Nadu. The Schedule Nomination was started on 26.10.2016, the last date of filing/delivering nomination was fixed on 02.11.2016, the date of scrutiny of nominations on 03.11.2016, last date of withdrawal of nomination was 05.11.2016, the date of poll was 19.11.2016 and the date of counting was held on 22.11.2016, finally the entire election schedule was to be completed on 24.11.2016.
3. The petitioner filed his nomination papers as DMK party's approved candidate along with necessary Forms A & B and affidavits on 31.10.2016 with returning officer at the office of Returning Office at Taluk Office, Thirunagar, Thirupparankundram. The District Supply and Consumer Protection Officer/30th respondent has been appointed as Returning Officer (herein after referred to as “RO”) for conducting free and fair election. The RO had established her officer at Taluk http://www.judis.nic.in 5 Office and started her election work. On 26.10.2016, the RO started issuing nomination papers to contest the by-election and receiving nomination papers from every proposed contesting candidates till 3.00pm of 02.11.2016. The petitioner also submitted his election nomination papers, paid the election deposit and took oath before RO. On 03.11.2016 at 10.00am the RO started to scrutinize the nomination papers filled by the candidates, the petitioner along with his counsel and the returned candidate/1st respondent were present during the scrutiny process at RO office. Since, the returned candidate filed his nomination papers on 28.10.2016, who gained seniority in Sl.No.7 of the list of scrutiny process. The RO took the nomination papers for scrutiny and immediately pronounced that the returned candidate's nomination/first respondent was accepted in lightning speed, without asking any objection from any person over the acceptance of the nomination papers. The petitioner and one M.Murugiah asked the RO to receive the written objection over the nomination papers of the first respondent. The RO without looking into the details of objections, declared the first respondent's nomination papers are intact and accepted. Thereafter, the petitioner counsel explained the objections of accepting nomination papers of first respondent and the RO was not interested in listening their legal objections. The counsel for the http://www.judis.nic.in 6 petitioner argued that Forms A & B were not affixed signature by ink by the competent person of AIADMK party as per the clause 13 of order and the order states as there shall be no facsimile signature or signature by means of rubber stamp etc., these two forms are most vital and part and parcel of the nomination papers. Form-A containing the authorized person of a recognized state party's name, designation and specimen signature to issue Form-B. The Form-B is for indicating its approved candidate of such recognized State party signed by that party's competent persons, whose name and signature is affixed in Form-A. It is very important duty of every RO to verify carefully these forms whether these are proper and as per law with every recognized political party candidates. The counsel for the petitioner insisted the RO to reject the Forms A & B of the returned candidate and not to allot the symbol “Two Leaves” and brought notice about the Clause 19.1.1 of Chapter XIX of ROs hand book and clause 13 of Order by which the Forms A & B are defective and not in conformity with Election laws and Rules.
4. On 03.11.2016, the petitioner sent his appeal by way of email to Election Commission of India, Chief Election Commissioner and Chief Electoral Officer to intervene in between the time to correct the said http://www.judis.nic.in 7 violative action of RO. Having more than 36 hours in their hands, the election officials/respondents failed to abide by election laws and rules and thereby permitting the first respondent to stand for election on two leaves symbol affected materially the result of the election. The petitioner submits that the four left hand thumb impressions on Form- A and one left hand thumb impression on Form-B of late Ms.Jayalalitha, General Secretary of AIADMK party are entirely different to each other, since the thumb impressions of then General Secretary of AIADMK party are varying to each other on seeing naked eyes. The same has to be verified as to corroborate the endorsement versions made by Dr.P.Balaji, M.S., Phd., from Madras Medical College & Rajiv Gandhi Government General Hospital, Chennai by the first respondent and RO. The genuineness of these LTI of the then General Secretary of AIADMK are not proved by the first respondent.
5. On 06.11.2016 onwards, the RO shifted the office of RO for
195.Thiruparankundram assembly constituency by-election 2016 to her regular office at Collector Office buildings at Madurai without any notice. The new RO office is situated 20kms away from the constituency, it takes more than two hours to reach the RO office, often she had gone for meeting the Minister for Cooperative http://www.judis.nic.in 8 Department and delivering her regular duty as District Supply Officer. Thereafter, the petitioner sent a written representation to the District Election Officer and Chief Electoral Officer to shift the RO office to Thirupparankundram Taluk Office at Thirunagar.
6. On 09.11.2016, the petitioner made written representation to the District Election Officer/District Collector, Madurai to direct the RO to produce the order copy of accepting the first respondent's nomination. The agent of the petitioner was called by RO office, where he was produced a order copy dated 05.05.2016 accepting the nomination of first respondent's nomination on 03.11.2016. The agent of the petitioner made an endorsement on the copy that despite made repeated demands, this order is produced/issued by putting ante-dated 05.05.2016 and acknowledged by his name with the date and time. It is clear that the RO has not followed any relevant provisions of Election Laws and Rules on scrutinizing nominations, receiving objections, conducting summary enquiry in prescribed manner in accepting first respondent's nomination and without passing order are blatant violation of election laws. The letter dated 27.10.2016 sent by the Election Commission of India to the Chief Electoral Office, Tamil Nadu states that on the request of CEO of Tamil Nadu by its letter dated http://www.judis.nic.in 9 CEO/26102016/2016, dated 26.10.2016 with the representation of AIADMK party regarding authentication of thumb impression of M/s.J.Jayalalitha, General Secretary of AIADMK on Forms A & B in terms of paragraphs 13 of the symbols order for the current election to legislative assembly which is not at all official letter.
7. The petitioner submits that the Election Commission of India appears to send a letter dated 27.10.2016 by its Principal Secretary Mr.K.Wilfred to the Chief Electoral Officer, Tamil Nadu. This letter does not states whether the Principal Secretary is for Election Commission of India. This letter does not show under what provision of law it was issued and did not express whether the clause 13 of symbol order was exempted or modified for the purpose of M/s.J.Jayalalitha, General Secretary of AIADMK party to fix her thumb impressions on Forms A and B for this election only. The total scenario of these letters transaction were very amazing and the coordination between AIADMK party, CEO, ECI, New Delhi and back to CEO, AIADMK Party and ROs were very rapid and constructive manner and those swift action and coordination was not at all in the manner known to law. http://www.judis.nic.in 10
8. The petitioner further states that on the polling date the Chief Agent Mr.P.Thangeswaran was supervising all over constituency about the performance of the presiding officers/polling officers. The presiding officers did not followed the mandatory procedure of conducting Mock Poll before starting regular Poll and they conducted mockery poll instead of mock poll as prescribed in the hand book of RO and presiding officers. Out of 291 polling booths in the constituency most of the polling officers failed to conduct due Mock Poll as prescribed, conducting Mock Poll as prescribed under the law on the following polling booth also materially affected the result of the election.
9. Further, the returned candidate have spent crores of rupees on contesting this by-election. The returned candidate deployed several party workers to disburse money to each voter of the constituency during election period. Particularly on 17.11.2016 and 18.11.2016 the returned candidate and his men freely disbursed Rs.1000/- to every voters by using government machineries, election officials including RO and entire police force. Being not satisfied with the voters, on the date of election an additional sum of Rs.1000/- was http://www.judis.nic.in 11 disbursed to the voters by way of issuing tokens. After polling date, the returned candidate and his men were disbursing the additional sum after verifying the voters whether they cast their votes. The petitioner's party men complaints to the local police and caught hold of them with money and took them to police station to book FIR. The returned candidate disbursed crores of rupees to voters and win over a margin of 42,670 votes. In the General Election 2016, the AIADMK party candidate won by margin of 22,991 votes. Hence, it is clearly proved that due to mass corrupt practice committed by the returned candidate and disbursement of money to voters directly and materially affected the result of the election.
10. The petitioner submits that this election petition is filed within 45days from the date of declaration of result on 22.11.2016 as prescribed under Section 81 of the Representation of People Act, 1951. The petitioner has also deposited a sum of Rs.2000/- towards security costs of this petition under Section 117 of the Act at the time of presentation of the election petition. Hence, the petition prays this Court to grant the relief as stated supra.
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11. The crux of the counter statement filed by the first respondent/returned candidate are as follows :-
The first respondent/A.K.Bose (deceased) submits that to fill up the casual vacancy caused by the death of M.Seenivel, the Election Commission announced by-election to No.195, Thiruparankundram Constituency in Tamil Nadu. The first respondent was nominated and approved candidate by the political party viz., AIADMK. Thereafter, he submitted the nomination papers along with other relevant and necessary documents to the RO on 28.10.2016. The General Secretary, Selvi.J.Jayalalitha of AIADMK party affixed her thumb impressions in Forms A and B in the presence of Dr.P.Balaji, Professor, Minimal Access Surgery, Madras Medical College & Rajiv Gandhi General Hospital, Chennai and the same was witnesses by Dr.Babu K.Abraham of Apollo Hospitals, Greams Road, Chennai. After scrutiny of the nomination papers, on 03.11.2016, the returning officer accepted the same. In the election held on 19.11.2016, the first respondent was declared as successful candidate by securing 1,13,032 votes and the petitioner herein secured 70,362 votes, which is more than 42,670 votes than the petitioner. http://www.judis.nic.in 13
12. The first respondent states that the RO followed the procedures contemplated before accepting the nomination papers received from the candidates. After scrutinising the nomination papers, the RO sought to know whether there was any objections from anyone. At that time, the petitioner and one Murugaiah, an independent candidate objected the acceptance of the nomination papers and stated that in Form A the signature of the AIADMK General Secretary who was authorised to intimate the name of the proposed candidate fixed by the Registered political party was absent. The Election Commission of India by its letter dated 27.10.2016, filed along with the nomination papers permitted a medical officer of any Government Hospital to act as an officer before whom the thumb impression may be affixed on Form-A and B of Selvi.J.Jayalalitha or who may attest such thumb impression. The Election Commission also directed the Doctor attesting the Thumb impression to either affix his rubber stamp or in the alternative to write down his full name and address while attesting the thumb impression. The same was directed to communicate to AIADMK party through Chief Electoral Officer. Dr.Balaji attested the thumb impressions of Selvi.J.Jayalalitha with an endorsement to the effect that the signatory affixed her left thumb impressions on her own in his presence. The affixture of thumb http://www.judis.nic.in 14 impressions in Form-A & B and the attestation by the Government Medical Hospital Doctor were only as per the letter issued by the Election Commission of India. There is nothing improper in accepting this respondent's nomination to contest the election on Two leaves symbol as the candidate set by AIADMK party. The petitioner did not raised any objection before the Returning Officer about the genuineness of the thumb impression of Selvi.J.Jayalalitha. The reason given by the petitioner for shifting the office from Thiruparankundram is denied as incorrect and it is only an invention of the petitioner to make allegations against the RO. The petitioner has not stated anything as to how the shifting of the office by the RO from Thiruparankundram to Madurai has materially affected the result of the election.
13. Further, the first respondent submits that the affixture of facsimile signature or signature by means of rubber stamp etc of such office bearer or authorised person are prohibited. The order does not prohibit the affixture of the thumb impression. The General Secretary of the AIADMK party underwent Tracheotomy and had an inflamed right hand and was unable to affix her signature in the Forms, representation was made to the Election Commission/Chief Electoral http://www.judis.nic.in 15 Officer to permit her to affix her thumb impression in the Forms. The letter dated 27.10.2016 addressed to the Chief Electoral Officer, Tamil Nadu is in the form of guidelines and there is no need for any exemption over Clause 13 of the Symbol Order. Further, the petitioner being a practicing Doctor, while a patient was maintained through ventilation by tracheotomy, the patient cannot be acting in full awareness nor in fair consciousness as well cannot speak nor talk due to the cut of tracheotomy are his opinion and that would not lead to the conclusion that the signatory was not conscious at the time of affixing the Forms.
14. Furthermore, the Presiding Officers had followed the hand book of Presiding Officers to conduct the polling and they did not conduct Mock Poll before starting regular poll and they are made only for the purpose of filing this petition. The allegations that the first respondent has spent crores of rupees for contesting the by-election is false and the petitioner is called upon to prove the same. Further, the Government machineries, election officials, RO and police force are used for disbursing money to the voters are raised only for the purpose of filing this petition. The first respondent has got a very good reputation among the general public and therefore he was able to http://www.judis.nic.in 16 secure more votes than his predecessors. Mere securing more votes than the predecessors does not amount to that the first respondent paid money to the voters. The first respondent was the MLA of the very same constituency during the period 2006-2011 and the MLA of Madurai North Constituency during 2011-2016 having good reputation among the people in the constituency. The attestation of the thumb impression by Selvi J.Jayalalitha was as per the specifications of the Election Commission, the attestation was not as per the election laws and rules is not sustainable and there is no cause for filing this petition and there is no merit in the petition filed by the petitioner and the first respondent prays for dismissal of the election petition.
15. Initially, the election petition was taken up and notice were served on the respondents. The first respondent appeared through counsel and filed his counter statement. Though notice were duly served on the respondents 2 to 27 (now respondents 4 to 29) none of them appeared in person or through their respective counsel and their names have been printed in the cause list and called absent and they are set exparte by an order of this Court dated 28.04.2017. The respondents 28 to 31 (now respondents 30 to 33) are represented through their counsel. Subsequently, the respondents 28 to 31 (now http://www.judis.nic.in 17 respondents 30 to 33) filed OA.Nos.338 to 341 of 2017 to strike off them as respondents in the ELP.No.2 of 2017, this Court after hearing both sides, allowed the original applications filed by the applicants and they are struck off from the array of respondents in the election petition.
16. Based on the pleadings and documents filed by both parties and submission made by both the Counsel the following issues have been framed by this Court on 03.07.2017 :-
i)Whether the Forms A and B submitted by the first respondent are defective and not in conformity with the Election Laws and Rules and acceptance of his nomination papers is not valid under the eye of Election Laws?
ii)Whether the left thumb impressions of Ms.J.Jayalalitha, General Secretary of AIADMK party (then) were defective in Forms A and B which is submitted by the first respondent?
iii)Whether the attestation made by Professor of Madras Medical College and Rajiv Gandhi Government Hospital, Chennai, is not in consonance with prevailing of Election Laws as well http://www.judis.nic.in 18 as the same is contrary with hand book of Returning Officers, as well as provision of Election Symbol order?
iv)Whether the act of Returning Officer in accepting the nomination papers submitted by the first respondent is proper and permitting him to conduct on two leaves symbol are against the relevant Election Laws and Rules which has materially affected the result of the election?
v)Whether the Election Officials respondents failed to abide any Election Laws and Rules and permitting the first respondent to stand for election on two leaves symbol affected materially the result of the election?
vi)Whether the nomination of papers of the first respondent were defective and the acceptance of the same by Returning Officer has materially affected the result of the election?
vii)Whether the thumb impressions affixed in Forms A and B are that of Ms.J.Jayalalitha? If so, whether the same were affixed with the http://www.judis.nic.in 19 understanding of the contentions of the Forms and name of the candidate approved by her party?
viii)Whether the Returning Officer has arbitrarily accepted the nomination of the first respondent?
ix)Whether the returned candidate was disbursing money to voters with the assistance of Police Personnel, his men and agents?
x)Whether declaring the election of the first respondent as returned candidate on 22.11.2016 from No.195, Thiruparankundram Assembly Constituency as null and void?
17. After completion of pleadings, during trial, on the side of the election petitioner himself was examined as PW1 and PW2 to PW8 were examined on the side of the petitioner and marked Exs.P1 to P15. No oral and documentary evidence were adduced on the side of the contesting respondent/first respondent. During the examination of witnesses Exs.X1 to X29 are marked.
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18. After completion of trial, at the stage of arguments the contesting respondent/first respondent died on 02.08.2018, the same was duly informed to this Court and death certificate was also produced in this regard. This court by an order dated 24.08.2018 directed to issue gazette notification under Section 116 of the Representation of People Act, 1951. The notification was published in the Tamil Nadu Government Gazette dated 05.09.2018 stating any person who is interested to challenge the Election Petition No.2 of 2017, in the place of A.K.Bose (deceased) first respondent shall approach this Court within fourteen days from the date of publication. The present respondents 2 and 3 have filed OA.Nos.904 and 888 of 2018 in ELP.No.2 of 2017 to permit them to contest the election petition as interested persons. This Court by an order dated 05.10.2018 allowed the applications and by permitting the election petitioner to carry out suitable amendments in the election petition. Hence, the applicants in OA.Nos.904 and 888 of 2018 are arrayed as respondents 2 and 3 in the ELP.No.2 of 2017.
19. Heard the rival submissions made on both sides and perused the materials available on record and the written submissions filed by the respective parties.
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20. During the course of arguments, the learned counsel for the election petitioner in support of his contentions placed his reliance on the following decisions :-
1. AIR 1950 SC 265 in the case of Commissioner of Agricultural Income Tax, West Bengal V. Keshab Chandra Mandal.
2. AIR 1954 SC 510 in the case of Rattan Anmol Singh v. Atma Ram.
3. 1969 (2) SCC 218 in the case of Ram Dayal V. Brijraj Singh.
4. 1976 (4) SCC 554 in the case of Seth Beni Chand V. Kamala Kunwar.
5. 1993 (3) SCC 357 in the case of Uma Ballav Rath V. Maheswar Monahty.
6. AIR 1994 P&H 77 in the case of Shironmani Akali Dal V. Election Commission of India.
7. 2001 (7) SCC 503 in the case of N.Kamalam V. Ayyasamy and another.
8. 2002 (1) SCC 633 in the case of Commissioner of income tax, Mumbai V. Anjum MH Ghaswala and others.
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9. 2003 (4) SCC 739 in the case of State of AP and others V. Goverdhanlal Pitti.
10.2004 (2) SCC 759 in the case of Ram Phal Kundu V. Kamal Sharma.
11.2007 (7) SCC 225 in the case of Apoline D'souza V. John D'souza.
12.2009 (10) SCC 541 in the case of Ram Sukh V. Dinesh Aggarwal.
13.2012 (1) SCC 762 in the case of Ramesh Rout V. Ranindra Noth Rout.
14.2017 (2) SCC 487 in the case of Mairembam Prithviraj v. Pukhrem Sharatchandra Singh.
21. In addition to their oral submission the learned counsel for the election petitioner has also filed written arguments in which he would submit that the issuance of EX.X2 by Prinicipal Secretary, Election Commission, is illegal, act of malice, without jurisdiction and violation of Election law laid down by the Hon'ble Supreme Court under Art. 141 of Constitution, it was not issued under Art. 324 of Constitution, nor issued under Para 18 of Symbol Order nor issued in the manner known to law. It was issued by Principal Secretary is fraud played on highest Constitution Office of Election Commission with http://www.judis.nic.in 23 connivance of Chief Election Officer, Tamil Nadu, and AIADMK Party, hence, permitting the returned candidate to file his nomination along with thumb impressions in Forms A & B is void, hence the act of Principal Secretary materially affected the result of the election which is invalid and incomplete nomination under section 33(1) of Representation of People Act 1951.
22. Further, the act of Returning Officer, who accepted the invalid nomination improperly and allotted the two leaves symbol to the returned candidate which materially affected the result of the petitioner's election, because if the invalid and defect in substantial nature of nomination was rejected by the Returning Officer, there would be no question of election against two leaves symbol, so the petitioner's victory was imminent in the absence of two leaves symbol. The petitioner has raised the pleas with regard to improper acceptance, violation of conducting enquiry in scrutiny, complaint against the improper acceptance of returned candidate's nomination, illegal allotment of two leaves symbol to the returned candidate's invalid nomination and the reason for materially affected the result of petitioner's election. The question of law regarding the authority of http://www.judis.nic.in 24 Returning Officer in respect of conduct of election are as follows:-
a) whether the returned candidate's nomination paper was complete one as per section 33 (1) of Representation of People Act 1951?
b) Whether it is not improper acceptance that the Forms A & B submitted by the returned candidate with thumb impressions which is violation to the provision of Symbols Order?
c) Whether it is legally correct that accepting the substantially defective nomination of returned candidate and allotting two leaves symbol to him to contest in election?
d) Whether Returning Officer is bound to follow provision of rule 2 (2) (a) of CE Rules 1961 and statutory instructions issued in Hand Book for Returning Officers in Para 19.1.1 while if there was any attestation for thumb impression in the place of signature in any of election papers?
e) Whether it is not an act of malice that the Returning Officer formed opinion on 28.10.2016 to accept the nomination of returned candidate on receipt of Exs.X2 & X22 from District Election Officer even prior to filing the nomination by the returned candidate?
f) Whether it is not an act of malice that the Returning Officer http://www.judis.nic.in 25 formed opinion on receipt of Exs.X2 and 22 on 28.10.2016 from the District Election Officer with his instructions in person to accept the nomination of returned candidate even the Forms A & B of were not signed in ink by the party president/secretary or person authorized by the party?
g) Whether it is correct that accepting the defective nomination of returned candidate on the basis of Ex.X. 2 while Returning Officer is cast upon the responsibility of independent quasi judicial authority in scrutiny?
h) Whether it is not duty of the Returning Officer to follow the mandatory procedure laid in Para 13 of Symbols Order as well the compliance of conditions laid down in the Foot Note of Forms A & B?
i) Whether it is legally correct to allot two leaves symbol to the returned candidate for the failure of mandatory compliance of Para 13 of Symbols Order?
j) Whether it is not materially affected for failure of conducting summary enquiry as prescribed in section 36 of Representation of People Act 1951 as quasi judicial authority?
k) Whether it is not the act of allotting two leaves for the http://www.judis.nic.in 26 furtherance of the prospects of the returned candidate's election result which affected materially the result of election petitioner?
23. The learned counsel for the election petitioner would further submit that as first incident, on 17.10.2016 the election Commission, the Returning Officer (Returning Officer) issued notification on 26.10.2016 under rule 3 of Conduct election Rules 1961 (CE Rules) by fixing venue of Returning Officer and timings of delivering and receiving nominations from proposed candidates along with date of scrutiny and declaring the valid candidate list for the said by-election under Form 1, i.e. Ex.X15. The Returning Officer set in motion the election process by way of the above said election notification at #195, Thirupparankundram Assembly Constituency. As per the provisions of Representation of People Act 1951, valid nominations shall be presented/filed before the Returning Officer under section 33 (1) of Representation of People Act, 1951. The nominations may be filed in two categories. The first category is that the candidates set up by Political parties (recognized National and State parties and unrecognized National and State parties) and the second category is that candidates not set up by any political parties i.e, independent candidates. Candidate setup by recognized political party shall file http://www.judis.nic.in 27 nomination along with prescribed documents which are called Forms A & B as prescribed in Para 13 of Symbols Order. These candidates set up by political party nomination is sufficient to propose by one proposer, who shall be the elector of same constituency. The candidates, who are not set up by political party shall be proposed by 10 electors of the same constituency. The Returning Officer is cast upon the duty of independent Quasi Judicial Authority during scrutiny of enquiry under section 36 of Representation of People Act,1951. The statutory instruction of Hand Book for Returning Officers in Chapter - VI, Para 6.2 explains the duty of the Returning Officer during scrutiny of nominations that the Returning Officer is functioning as Quasi Judicial authority and the Returning Officer has to discharge the duty with complete judicial detachment and in accordance with the highest judicial standards. It further instruct the Returning Officers that they should not take any direction from any superior authority including CEO or the Commission's observer validating the nominations during scrutiny.
24. The learned counsel would further submit that the Returning Officer has to discharge her duty under section 24 of the Representation of People Act 1951. In addition the statutory http://www.judis.nic.in 28 instructions issued by the Election Commission under the Hand Book of Returning Officers very significantly instructed the Returning Officers as to how the Returning Officers shall scrutiny in validating the nomination of any candidate at scrutiny and the relevant instructions are extracted hereunder:
“In Chapter - VI, Para 6 describes the significance of the Forms A & B under Symbols Order.
6.10.3 In view of the provision in law (made in 1996) whereby the nomination papers of candidates set up by recognized National and State Parties are required to be subscribed by only one elector as proposer and of other candidates by ten electors as proposer certain clarification were sought from the Commission regarding setting up of candidates by political parties. Clarifications given on these points are as under:-
(i) Nomination paper filed by a candidate claiming to have been set up by a recognized National or State party subscribed by only one electors proposer, will be rejected , if a notice in writing to that effect signed by the authorized office- bearer of that party has not been delivered to the Returning Officer of the constituency by http://www.judis.nic.in 29 3.00 p.m. ON THE LAST DATE FOR MAKING NOMINATIONS IN FORM ‘A’ AND ‘B’ devised by the Commission for the purpose under para 13 of the election Symbols (Reservation and Allotment Order, 1968.
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(iii) If a candidate has filed one nomination paper with both parts I & II thereof filled and he fails to bring notice in Forms ‘A’ and ‘B’ from the authorized officer-bearer of the concerned political party, the nomination paper may be accept if part II is properly filled and subscribed by ten electors as proposers, as there will be substantial compliance with the provisions of section 33 of the Representation of the People Act, 1951.
(iv) If a candidate, who filed his nomination paper as candidate claiming to be set up by an un- recognized political party, fails to bring in his favour a notice from the concerned political party in Forms ‘A’ and ‘B’, his nomination paper will be accepted if it is subscribed by ten electors as proposers, and he would be deemed to be an independent candidate.” and further instruct the Returning Officers under what circumstance http://www.judis.nic.in 30 the nominations of a candidate may be rejected .
6.10 GROUNDS FOR REJECTION OF NOMINATION PAPERS 6.10.1 : You must reject a nomination paper, if-
(iii) Requirements of section 33 of Representation of People Act, 1951 are not fulfilled.
25. Therefore, if any candidate in his nomination failed to comply any of conditions prescribed in Para 13 of Symbols Order and violating the law laid down with regard to the Para 13 of Symbols Order is amount to non compliance of the mandatory nature provision of election law. Further such nomination shall be defective in substantial nature, hence such nomination shall be rejected under section 36 (4) of Representation of People Act 1951 and also for rejecting incomplete nomination under section 33(1) of Representation of People Act 1951. This is what the instructions of Hand Book of Returning Officers, provisions of Representation of People Act 1951 and proviso of Symbols Order made to act the Returning Officer as well the law laid down by Supreme Court in this regard. Since the Returning Officer is cast upon the duty of discharging Quasi Judicial nature of function in scrutiny of nominations and the Returning Officer has to discharge the duty with complete judicial detachment and in accordance with the http://www.judis.nic.in 31 highest judicial standard, the Returning Officer in this by-election wholly and entirely failed and violated all election laws to accept improperly the substantial defective nomination of returned candidate and illegally allotted two leave symbol for the furtherance of prospect of the result of election for returned candidate. The Returning Officer failed in discharging her Quasi Judicial function with detachment. As per her deposition, On 28.10.2016 prior to the returned candidate filing his nomination as candidate set up political party, the District Election Officer, Madurai called her in his office to hand over the copy of Exs.X2 and X22 in person. While the Returning Officer appeared before the District Election Officer to get those documents, she was given instruction to follow the clarification issued by election Commission, i.e., Ex.X.2. The Ex.X22 is the covering letter of the Chief Election Officer, Tamil Nadu, addressing all District Election Officers and all Returning Officers in those assembly constituencies elections were on going. Despite the Principal Secretary, Election Commission did not ask the Chief Election Officer, Tamil Nadu, to communicate the Ex.X2 through District Election Officers, the Chief Election Officer, Tamil Nadu, in said letter instructed all District Election Officers to Communicate the Election Commission's letter dated 27.10.2016 (Ex.X2) to Returning Officers to follow the instructions of http://www.judis.nic.in 32 Election Commission dated 27.10.2016 (Ex.X2). It is further pertinent to note that the District Election Officer in his deposition admitted as he gave oral instruction to Returning Officer to follow the instruction of Election Commission in Ex.X2 for AIADMK candidate. In fact it was not at all his business of District Election Officer to issue instruction to Returning Officer as what to do the Returning Officer in scrutiny with regard to the returned candidate's substantially defective nomination. This is how the conspiracy of trio further elongated via District Election Officer, Madurai, who gave the idea to the Returning Officer to accept the nomination of AIADMK party candidate in case the Forms A & B are not signed in ink only as per mandatory provision of Para 13 of Symbols Order. Further the learned counsel would submit that the Ex.X. 2 instructed the Tamil Nadu Chief Election Officer to communicate the same to respective Returning Officers directly. However, the Chief election Officer, Tamil Nadu, wanted to stress on the Ex.X. 2 to give clear instruction by District Election Officer, Madurai to Returning Officer in the meaning of accepting returned candidate's Forms A & B with affixing thumb impression, he sent Ex.X2 unnecessarily to the District Election Officer, Madurai who is the immediate superior boss of the Returning Officer. This is how the Chief Election Officer, Tamil Nadu, cleverly played to accept the http://www.judis.nic.in 33 substantially defective nomination of the returned candidate by Returning Officer. The Returning Officer admitted in her chief examination as well in cross examination that on receipt of the said Ex.X2 & Ex.X22 from District Election Officer, Madurai, with instruction as above said, she formed opinion (pre-decision) to accept the nomination of AIADMK party candidate if the Forms A & B are affixed thumb impression instead of signature in ink only. It was decided by the election officials to accept the defective nomination of the returned candidate through Returning Officer even prior to filing the nomination by the returned candidate as set up by political party. On 28.10.2016, at about 2.15 pm, the returned candidate filed his nomination as the Returning Officer expected. The Forms A & B under Para 13 of Symbols Order were not complied by the returned candidate. Instead of complying the mandatory nature of conditions that "sign", "in INK Only", the returned candidate filed the Forms A & B with the alleged thumb impressions of his party General Secretary Selvi.J.Jayalalitha and the same was said to have authenticated by one Dr. P.Balaji, Professor of Rajiv Gandhi Government General Hospital, Chennai as Medical Officer. The copy of the said nomination was displayed in the notice board of the office of Returning Officer and it was came to know publically such flagrant violations and http://www.judis.nic.in 34 non-compliance of mandatory nature of Para 13 of Symbols Order. Therefore on 03.11.2016, the petitioner attended scrutiny process with his advocate to object the defective nomination of the returned candidate to accept. Admittedly the returned candidate did not attend the scrutiny process, but, he was represented by bunch of his advocates. Another independent candidate one Mr. Murugaiah also filed his objection against the returned candidate's nomination. It was not at all heard by the Returning Officer nor passed order over the said objection.
26. During scrutiny, while the Returning Officer taking the nomination of returned candidate, petitioner submitted 13 pages detailed objection on legal grounds objecting the acceptance of the returned candidate's nomination. The objections were a)affixing thumb impressions in Forms A & B are impermissible, b)Para 13 of Symbols Order was not complied, c)the attestation was not in consonance with CE Rules 1961, d)since Ms. J. Jayalalitha was undergone tracheastomy for invasive ventilation, she ought not to have affixed her thumb impressions on her own, etc. The petitioner also enclosed the law laid down by the Supreme Court in respect of compliance of Rule 2(2)(a) of CE Rules 1961. Having the returned candidate filed his nomination http://www.judis.nic.in 35 with non compliance of mandatory provision Para 13 of Symbols Order which lead the nomination is defective in substantial nature, the said nomination of returned candidate should have to be rejected legally. The Representation of People Act and statutory instruction issued in Hand Book for Returning Officers in Para 6.2.1 cast upon duty of Quasi Judicial Authority on Returning Officers. In contra, the Returning Officer entirely failed to discharge her duty either as per Representation of People Act or as per Hand Book for Returning Officers and acted with pre-decisive mind to accept the substantial defective nomination of returned candidate with the primary support of Ex.X2 on 03.11.2016.
27. In the evidence of Returning Officer, she deposed in more than 20 places as to how she accepted the defective nomination of returned candidate despite she knew the non-compliance of election laws, in particular the mandatory conditions of Para 13 of Symbols Order. The Returning Officer has firmly acted to accept the substantial defective nomination of returned candidate with only support of Ex.X2. The evidence of the Returning Officer is extracted hereunder :-
Q : Is it correct to state that the Instructions of the http://www.judis.nic.in 36 Hand Book for Returning Officers is binding on you? A : Yes.
Q : Are you aware that in the hand book for Returning Officer, Election Commission has already specified a administrative officer is the officer to attest thumb impression.
A : Yes Q : Who are the officers in the cadre of administrative service officers not below the rank of sub-divisional officer?
A : Sub-Collector, RDO Q : Is it correct to state that you performed as an independent and quasi judicial officer during the scrutiny process?
A : Yes.
Q : Did you verify whether the thumb impressions in Forms A & B were that of Ms. J.Jayalalitha? A : As per Election Commission of India's instructions, I accepted Forms A & B. Q : Are you aware that in Para 13 (e) of Symbols Order, it has been mentioned that the signatures in Form http://www.judis.nic.in 37 A & B should be in INK and in no other form? A : Yes.
Q : What was your view when you took up the nomination papers of the returned candidate A.K.Bose for scrutiny?
A : I followed the process as per Election Commission of India's instructions and accepted it. Q : Did you verify on the objection submitted by the DMK candidate stating that Rule 2 (2) of CE Rules 1961 was not followed (at the time of ) in the scrutiny of nomination of the returned candidate? A : We informed orally that the instructions (Ex.X.2) of the Election Commission were followed and nomination was accepted accordingly. Q : It has been alleged in para 11 of Ex.X. 19 (objection of the election petitioner dated 03.11.2016) that the signatory could not have been in a conscious state of mind while affixing the thumb impression since she had undergone tracheotomy recently. Did you verify about this?
A : No, Election Commission of India's instruction (Ex.X.2) were followed.
Q : It has been alleged in Ex.X.19 that if Forms A & B do http://www.judis.nic.in 38 not contain signatures and is not attested by an officer as per Representation of People Act, CE Rules and Instructions of Hand Book of Returning Officer, hence the nomination should have been rejected for defect of substantial character. Did you conduct an enquiry on this?
A : I did not conduct any separate enquiry. But the persons who raised objections were shown the letter of the Election Commission of India (Ex.X. 2) and I explained to them that the Election Commission of India had issued instructions to accept the nomination of the returned candidate and accordingly I accepted the same.
Q : Is it correct to state that when advocate of P.Saravanan pointed out that the Rule 2(2) of CE Rules and Instructions of HB of Returning Officer were not followed, the attestation was not proper and Supreme Court were cite in this regard, you simply said that the instructions of the Election Commission of India (Ex.X. 2) were being followed?
A : Yes.
Q : Is it correct to state that before Mr. Murugaiah http://www.judis.nic.in 39 started his oral submissions, you had accepted the nomination of the returned candidate? A : No, he did not make any oral submissions. After receiving both the written objections, I explained that the Election Commission of India had given instructions to accept the nominations. Q : What is the endorsement made by in the Ex. X. 16 (marked by Returning Officer) (it is original nomination of returned candidate) A : Endorsed in Tamil that nomination is being accepted as per letter of the Election Commission bearing No.4/SDR/2016, dated 27.10.2016 (Ex.X.2). Q : Is it correct to state that you have mentioned in Ex.X21 (Marked by Returning Officer, which is reply to the request of the election petitioner dated 3.11.2016 seeking to supply the order of rejecting his objection dated 3.11.2016) that the nomination of AIADMK candidate A.K.Bose is being accepted as per the letter of the Election Commission bearing No.4/SDR/2016, dated 27.10.2016 (Ex.X.2) and the e-mail letter of the CEO in No. 14200/2016-86, http://www.judis.nic.in 40 dated 27.10.2016 (Ex.X.14, marked by District Election Officer) A : Yes.
Q : Is it correct to state that one basis of Ex.X. 2 and Ex.X. 14 you have accepted the nomination of A.K.Bose?
A : Yes. Since Forms A & B contained thumb impressions, the instructions of Election Commission of India vide letters Exs. X2 & 14 were followed. Q : Is it correct to state that in spite of you are being independent and quasi judicial authority in scrutiny, you have accepted the nomination of AK Bose based on Exs.X2 and X14?
A : Yes. Since Forms A & B contained thumb impressions, the instructions of the Election Commission of India vide letters Ex.Xs. 2 & 14 were followed.
Q : Does the language of Ex.X. 22 ( this is letter issued by the CEO to Returning Officer & District Election Officer and the same was communicated by District Election Officer to Returning Officer) direct you to http://www.judis.nic.in 41 accept the nomination of the returned candidate? A : It does not ask me to accept the nomination of returned candidate. It directs me to follow the instructions of the Election Commission of India as per letter Ex.X.2 annexed with Ex.X.22.(the Ex.X. 22 is the letter written by 3 CEO to District Election Officers and 3 Returning Officers to communicate the Ex.X. 2) Q : Has the Election Commission of India in Ex.X. 2 directed you to accept Forms A & B with the thumb impression of Ms. J.Jayalalitha?
A : In Ex.X.2 it has been mentioned that as per Election Commission of India's instructions the thumb impression in Forms A & B may be accepted and accordingly the nomination of returned candidate was accepted. ( my Note the Ex.X. 2 do not instruct the Returning Officer to accept the returned candidate's nomination) Q : In Election Commission of India letter Ex.X. 2 has the Election Commission anywhere mentioned/ referred the provisions of CE Rules, Representation http://www.judis.nic.in 42 of People Act or instructions of Hand Book for Returning Officers have been relaxed?
A : No, it has not been stated.
Q : Is it correct to state that if not Ex.Xs.2 & 22, you would not have accepted the nomination of the returned candidate.
A : Yes.
Q&A: Out of 28 nomination filed, in 27 nomination papers I have made endorsement "Accepted". On 28.10.2016 I received Ex. X. 2 from the District Election Officer. On that day i.e.28.10.2016, on which I received Ex.X.2 along with 14, I had formed an idea with regard to nomination of the returned candidate. Q : Upon receiving Ex.X. 2, you would have formed idea that the thumb impression attested by medical officer in Forms A & B shall be accepted. That would be the idea struck in your mind, is it not? A : Yes.
Q : How did you accept the nomination of the returned candidate?
A : I had accepted his nomination papers as per Ex.X.2. This is how she deposed her evidence that as to how she without http://www.judis.nic.in 43 hesitation of skipping each and every prevailing election laws but gone with the said illegal Ex.X2 to accept the substantially defective nomination of the returned candidate. Despite the Returning Officer knew she is quasi judicial authority in scrutiny process as she admitted too, she miserably failed to discharge her duty with detachment on 03.11.2016. However, further she allotted two leaves symbol to the returned candidate on 05.11.2016 on the basis of void Forms A & B. The illegal act of Returning Officer just materially affected the result of the election petitioner.
28. In the deposition, the Returning Officer admitted that the Forms A & B are not complied as per Para 13 of Symbols order and also there was non-compliance of rule 2(2)(a) of CE Rules 1961 and the attestation was not complied as per Para 19.1.1. of Hand Book for Returning Officers. In particular that the Forms A & B were not complied under the Symbols Order. Despite so, the Returning Officer accepted the incomplete, substantially defective nomination of the returned candidate, exclusively on the support of extrinsic document that Ex.X2. Having accepted the said nomination with support of extrinsic document is unfounded in law and it is just violation of all election laws in particular the Symbols Order. In fact, the Hon'ble http://www.judis.nic.in 44 Supreme Court laid down law in particular Para 13 of Symbols Order that non-compliance of the said condition would lead the defective in substantial nature, such nominations shall be rejected at scrutiny itself. The Hon'ble Supreme Court held in 2012 (1) SCC 762 (cited supra) that " 40. In Krishna Mohini Vs. Mohinder Nath Singh case (2000 (1) SCC 145) that (SCC p 160, para 34)
34. .......... In order to be a candidate set up by a registered and recognised political party so as to take advantage of being proposed by a single elector, all the four requirements set out in clauses (a), (b), (c) and (d) of para 13 of (1968 Order) must be satisfied."
41. Clause (e) of Para 13 of the 1968 order is equally important. it reads, 'Forms A and B are signed, in ink only, by the said office bearer or person authorized by the party'. The proviso appended to Para 13 makes a provision that no facsimile signature or signature by means of rubber stamp, etc., of any such office bearer or authorized person shall be accepted and no form transmitted by fax shall be accepted. In other http://www.judis.nic.in 45 words, a candidate proposed by a single elector alone, to be treated as a candidate set up by a recognised political party, the filing of notice and communication in Forms A & B referable to clauses (b), (c) and (d) and in accord with clause (e) of Para 13 of the 1968 Order is essential and on its non-compliance of nomination of such candidate is liable to be rejected .
42. That clause (e) of Para 13 of the 1968 Order does not use expression 'shall be signed' is obvious from a bare reading of the provision but the significance of the word "only" therein cannot be ignored.
43. In Concise Oxford English Dictionary (10th Edn. Revised), the word "only" is explained.
"Only - adj. 1.and no more or nothing more besides .... - adj. alone of its or their kind; single or solitary"
44. In Webster Comprehensive Dictionary, International Edn. (Vol.2), the word "only" is defined thus :
Only (on'ly) adv. ... 2. In one manner or for one purpose alone...... 4. Solely: merely; exclusively:
http://www.judis.nic.in 46 limiting a statement to a single defined person, thing or number. - adj. 1 Alone is in its class; having no fellow or mate; sole; single; solitary:
45. The word "only" is ordinarily used as an exclusionary term. In the American case own Vs. Eisner (US at P.425) the Court said : ( L Ed p.376) ".... A Word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstance ad the time in which it is used."
46. In ascertaining the meaning of the word 'Only' , its placement is material and so also the context in which the word has been used. The use of the word 'Only' in clause (e), Para 13 1968 Order emphasises that Form A & B are to be signed in ink by the office bearer or person authorised by the recognised part and in no other way. Thus, it excludes any other mode of filing Forms A & B when a candidate is set up by a recognised political party. In our view, therefore, the word 'Only' used in clause (e) of Para 13 is indicative of the mandatory character of that provision.” http://www.judis.nic.in 47 Despite so, the Returning Officer was under influence of the Election Commission's letter in Ex.X.2 and the instruction of District Election Officer, Maduari in person dated 28.10.2016 along with Ex.X.22, improperly accepted the nomination of the returned candidate by which materially affected the result of the petitioner's election.
29. In sofar as verifying the Forms A & B under Para 13 of Symbols Order during scrutiny that too on objections by the petitioner and another independent candidate. The Returning Officer has to follow the instructions given in Hand Book for Returning Officers in para 6.6.1 strictly as per election laws and in particular the Para 13 of Symbols Order. However, she simply with blind folded eyes, She went by support of extrinsic document to avoid in rejecting for non compliance of conditions stipulated Para 13 of Symbols Order which was the substantial defective nature of nomination under section 36(4) and 33(1) of Representation of People Act 1951. It is the duty of the Returning Officer, as quasi judicial officer, to follow the election laws in particular compliance of Para 13 of Symbols Orders in validating the nomination of the candidate set up by political party. In contra, the Returning Officer as quasi judicial officer for the reasons known to her, she did not follow the election laws as aforesaid. The learned counsel http://www.judis.nic.in 48 would rely on the decision rendered by the Hon'ble Supreme Court, reported in 2004 (2) SCC 759 (cited supra), which is extracted hereunder :-
"................. Therefore, this exercise should be done strictly in accordance with Paras 13 and 13A of the Symbols Order and extrinsic evidence given in derogation thereof cannot be looked into." Again it held in the same judgment that "14. If instead of deciding the matter in accordance with Paras 13 and 13A of Symbols Order, it is decided on the basis of extrinsic evidence (oral or document) given (here in our case Ex.X. 2, document, issued by Election Commission), it is capable of a good deal of misuse."
The Apex Court again stressed the same that "....... Applying the said principle (power is given to do a certain thing in a certain way, the thing must be done in that way only), we are of the opinion that the question as to who shall be deemed to have been set up by a political party has to be determined strictly in accordance with Paras 13 and 13A of the Symbols Order for this purpose......"
http://www.judis.nic.in 49 Under these context, despite the prevailing election laws in particular Para 13 of Symbols order is in force, the Returning Officer acted in don't care manner to improperly accept the defective nomination of the returned candidate.
30. The Symbols Order have appended the proforma of Forms A & B where the Election Commission stressed its intention to reveal each political party and election officials particularly Returning Officer that in foot note laid down the conditions as to how comply in a mandatory nature of language. The foot note is extracted hereunder:
“1.This must be delivered to the Returning Officer and the CEO not later than 3 p.m. on the last date for making nominations. (Form A to be submitted either to CEO or Returning Officer but the Form B shall be submitted to the Returning Officer only)
2.Forms must be SIGNED IN INK by the office bearer(s) mentioned above. No facsimile signature or signature by means of rubber stamp, etc., of any office bearer shall be accepted.
3. No Form transmitted by fax shall be accepted.” Despite this was shown during the scrutiny as the returned candidate http://www.judis.nic.in 50 failed to comply the condition clause 2 of said foot note, the Returning Officer simply blind folded her eyes and repeatedly told parrot like as she was informed by the Election Commission to accept the nomination of returned candidate as per Ex.X2. Further the Hon'ble Supreme Court in 2012 (1) SCC 762, Para 24 observed the significance of the instructions of Hand Book for Returning Officers in particular as to how the Returning Officers shall discharge their duty at scrutiny. Therefore, the Returning Officer miserably failed to discharge her duty as independent quasi judicial authority with detachment but successfully discharged her duty by committing malice to accept the nomination of the returned candidate which is defective in substantial character and allotting the reserved symbol of Two Leaves to returned candidate for contesting election which materially affected the result of the election.
The Returning Officer, an independent quasi judicial authority in scrutiny shall validate the nominations of contesting candidate with highest Judicial standards in particular with detachment. In scrutiny, as per Hand Book for Returning Officer, if she accept any valid nomination of any candidate, the Returning Officer has to endorse "accepted" or "Vw;fg;gl;lJ" in vernacular language and shall be signed under it with date. In #195 Thirupparankkundram Assembly Constituency for by-election Nov-2016, the Returning Officer validated http://www.judis.nic.in 51 totally 28 nominations including the returned candidates invalid nomination. She validated the 27 nominations by endorsing "accepted" by simple way as it directed by instructions of Hand Book for Returning Officers. Since the petitioner filed objections and explained what is not complied by the returned candidate in his nomination, hence it was defective in substantial nature which is to be rejected on the threshold, she had understood the difficulty of making endorsement as simple as "accepted" in the nomination of returned candidate, she took support of the extrinsic document of Ex.X2, she particularly endorsed in Tamil that ,e;jpa njh;jy; Miza foj vz; 4/SDR/2016. Ehs; 27/10/2016d;go ntl;g[ kD Vw;Wf;bfhs;sg;gLfpwJ ("as per the election Commission of India's letter No. 4/SDR/2016, dated 27.10.2016 the nomination was accepted"). This original nomination of returned candidate is marked as Ex.X16 by the Returning Officer in her evidence. Therefore, it would again show as to how she failed to discharge her duty of quasi judicial authority in scrutiny in view of the illegal Ex.X2 and improperly accepted the substantially defective nomination.
31. Further, even assuming for a moment that the Ex.X2 may be valid but Returning Officer is cast upon the duty of an independent quasi judicial authority who ought to have discharged her function. http://www.judis.nic.in 52 The Returning Officer admitted in deposition the Representation of People Act 1951, CE Rules 1961, Instructions of Hand Book for Returning Officers and Symbols Order are binding her in discharging her quasi judicial authority. In this context, the petitioner raised objection in particular that the rule 2(2)(a) of CE Rules 1961 was not complied by the returned candidate in his Forms A & B under Symbols Order. Therefore, even if the Returning Officer agreed the thumb impression, she as quasi judicial authority ought to have considered whether the rule 2 (2)(a) of CE Rules and under instruction of 19.1.1. in Hand Book of Returning Officer were complied so far as attestation is concerned. The attestation under the Representation of People Act is not simple one but it is to be done in letter and spirit. The Hon'ble Supreme Court has held in AIR 1954 SC 510 in the case of Rattan Anmol Singh Vs. Atma Ram in para 7 to 14 held that the attestation is not mere technical, it is substantial and the attestation shall be done as in the case of WILL or mortgage. In another occasion the Hon'ble Supreme Court has held in 1969 (2) SCC 218 in para 4 that "whenever signature is necessary, must be in the strict accordance with the requirements of the Act and where the signature cannot be written it must be authorized in the manner prescribed by the rules. http://www.judis.nic.in 53 Attestation is not a mere technical or unsubstantial requirement within the meaning of section 36(4) of the RP Act 1951 and cannot be dispensed with".
Despite the attestation was neither complied under election laws nor as per orders of Apex Court, the Returning Officer accepting the said defective nomination is act of malice in law.
32. The Returning Officer is duty bound to follow the provisions of all election laws viz., Representation of People Act 1951, CE Rules 1961, Symbols Order and statutory instructions in the Hand Book for Returning Officers. She also admitted the same as she has to follow the Instructions given in Hand Book for Returning Officers and it is binding her too. The Hon'ble Supreme Court also laid the law for the Returning Officers to abide the instructions of Hand Book for Returning Officers in election process. The Hon'ble Supreme Court held in 2009 (10) SCC 541 in Para 23 that :
"23. There is quarrel with the proposition that the instructions contained in the Hand Book for the Returning Officers are issued by the election Commission of India in exercise of its statutory functions and are, therefore binding on the Returning Officers. They are obliged to http://www.judis.nic.in 54 follow them in letter and sprit. ............"
33. On 03.11.2016 (Ex.P. 6) the petitioner filed objection during scrutiny to Returning Officer, the Returning Officer without passing orders on the petitioner's on that day, she accepted the substantially defective nomination. However, the petitioner immediately on the same day at about 3.00pm lodged appeal to the Election Commission by way of e-mail which was received but no action was initiated to stop the Returning Officer's illegal act and further act of allotment of symbol on 05.11.2016. The petitioner's mail dated 03.11.2016 is marked by Principal Secretary, Election Commission in Ex.X26. When the CEO sent Exs.X3 & X4, the Principal Secretary, Election Commission acted swiftly on the same day, but the petitioner's appeal require very emergent attention to restrain the further illegal act of allotment of symbol on 05.11.2016 by Returning Officer on the defective nomination and in particularly for non-compliance of Para 13 of Symbols Order. This is how all top election officials of Election Commission colluded to commit act of malice. The Hand Book issued very specific direction to the Returning Officer, which is extracted hereunder :
CHAPTER –VIII http://www.judis.nic.in 55 ALLOTMENT OF SYMBOLS 8.2 CHOICE OF SYMBOLS BY CANDIDATES 8.2.1 A candidate sponsored by National or State Party shall choose and shall be allotted only the symbol exclusively reserved for that party and no other symbol, provided the requirement of filing Form A and B etc. have been duly followed. In view of this, such a candidate need not indicate three symbols in order of preference in his nomination paper but must indicate the symbol reserved for the party, which has set him up as a candidate. 8.4 ALLOTMENT OF SYMBOLS TO CANDIDATES 8.4.2.(a) **** ********
(p) ****
(o) A candidate shall be deemed to be set up by a political party, whether recognized as National or State Party or a registered unrecognized party, if, and only if,-
(i) The candidate has made a declaration to that effect in any of his nomination papers;
(ii) A notice in writing (Form B) to that effect has, not later than 3 p.m. on the last date for making nomination, been delivered to you;
http://www.judis.nic.in 56
(iii)The said notice is signed by the President, the secretary or any other office bearer of the party and the President, secretary or such other office bearer is authorized by the party to send such notice; and
(iv) The name and specimen signature of such authorized person are communicated to the Returning Officer of the constituency and to the Chief Electoral Officer of the (in Form A) State not later than 3.00 p.m. on the last date for making nominations.
(p) specimen Signature under clause (iv) of para (o) above of the office bearers of each political party, who are authorized to end the notice referred to in clause (ii) should be furnished to you by the political party concerned in Form ‘A’ prescribed by the Commission for the purpose which is reproduced in Annexure 25, Part-II. Printed cyclostyled and photocopies of aforesaid Form ‘A’ may be used by political parties but these must bear the signature in ink of the authorized office bearers of the political party. Facsimile signature shall not be accepted. Similarly, fax copies of such forms are also not acceptable.
(q) For the purpose of clauses (ii) of paragraph (o) above person(s) authorized by the party shall send to you individual http://www.judis.nic.in 57 notice (authorization letter) in Form ‘B’ prescribed by the Commission for the purpose, which is reproduced in Annexure 25 Part III. Printed, cyclostyled and photocopies of form ‘B’ may be used by political parties; but these must be signed in ink by authorized office bearer(s) of the political party concerned. Similarly, fax copies of such forms are not acceptable.
N.B. The notice in Form A and Form B signed in original must reach you not later than 3 p.m. on the last date for making nominations. The presentation of these Forms to the Chief Electoral Officer alone will not be treated as compliance with the provisions of para 13 of the election Symbols (Reservation and Allotment) Order, 1968. It shall be the responsibility of the candidate or the political party concerned to ensure that the documents reach the Returning Officer in time. However, the submission of these Forms to you within the prescribed time will be considered as substantial compliance of the legal requirements, even if the same have not reached the Chief Electoral Officer.] http://www.judis.nic.in 58
(r)A Substitute candidate of political party will step in only in the event of nomination of main candidate being rejected on scrutiny, or on the withdrawal of the candidature by the main candidate (and if the nomination of substitute candidate was otherwise valid and accepted and he is still in the field). If the nomination paper filed by the main and substitute candidates of a recognized National/State Party is accepted, and if the nomination of the substitute candidate is signed by only one proposer then the nomination of the substitute candidate shall be rejected . If his nomination paper is subscribed by ten proposers and if such substitute candidate does not withdraw his candidature, he will be treated as an independent candidate.
(s) Political parties are, permitted to cancel the authorization in Form B given in favour of one candidate and give a revised notice in Form B, in favour of another candidate subject to following conditions namely:-
i.such revised notice in Form B cancelling or substituting the authorization in earlier notice should clearly state that the earlier notice in favour of a candidate id rescinded and this revised notice should be received by the Returning Officer of the constituency concerned not later than 3.00 P.M. on the last http://www.judis.nic.in 59 date for making nominations;
ii.Such revised notice in Form B is signed by the authorized office-bearer referred to in clause (d) of paragraph 13 of Symbols order (see also sub-para (o) (iii) above);
iii. The Returning Officer is satisfied about the genuineness of the revised notice; and iv. The candidate in whose favour the revised notice has been given has already made a declaration in his nomination paper that he has been set up by the said political party. (u) The Symbols Order does not recognize Electoral alliance which are often entered into by political parties. Therefore, a registered or recognized political party, should not be allotted by you any reserved symbol of another recognized political party even with the consent of such latter party with whom it has entered into an Electoral alliance for the purpose of contesting an election. You should be strictly guided by the provisions of paragraph 13 and 13A of the Symbols Order in all cases of allotment of Symbols, to candidate set up by political parties.
(x) An explanatory note for allotment of symbols to candidate is given in Annexure 26 for your guidance. In case of any doubt or reference please refer to the Symbols Order. You should refer http://www.judis.nic.in 60 to the latest list of political parties and election symbols issued by the Commission. You should obtain the list from Chief Electoral Officer well before the date of notification of election.
8.5 INCORRECT ALLOTMENT OF SYMBOLS 8.5.1. The allotment of a symbol made by you to a candidate shall be final except where it is inconsistent with any direction issued by the Commission in this behalf in which case the Commission may revise the allotment in such manner as it thinks fit. You should, therefore, ensure that no mistake occurs in allotting symbols. You may also refer to above referred explanatory note for further guidance in the matter especially in regard to procedure to be followed while dealing with registered unrecognized parties. Despite the Election Commission had issued very conspicuous and elaborate statutory instructions to the Returning Officer, she was only swept away by the Exs.X2, X14 and X22 and she illegally allotted two leave symbol to the returned candidate for his substantially defective candidate to the furtherance of his election result. Therefore, the Returning Officer who had to be quasi judicial authority simply get into http://www.judis.nic.in 61 the shoulder of the Exs.X2, X14, & X22 to save her post and skin joined the act of malice to violate each mandatory election laws in respect of accepting nomination and allotting reserved symbol to the returned candidate and she executed her top election officials agenda of allotting two leave symbol to the defective nomination of returned candidate to his furtherance of prospects of his election result.
34. The Returning Officer without due notice under Rule 3 of CE Rules 1961 (Ex.X15) transferred the office of Returning Officer to her parent office at collectorate Complex, Madurai, which is outside of the #195 Thirupparankundram AC and away from 20 km to help out functionaries of returned candidate's party men. Further she flagrantly violated in conducting MOCK POLL under the instructions of Election Commission in Ex.X. 9 marked by Chief election Officer, Tamil Nadu. The Thirupparankundram assembly constituency consists 291 polling booths. Since the Returning Officer failed to ensure the mandatory Mock Poll upto 100 votes, Ex.X.23 would show majority of the polling officer conducted single digit mock poll. These are another violations on the hand of Returning Officer herself to the furtherance of prospect of election result of returned candidate.
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35. The Principal Secretary to Commission, Chief Election Officer of Tamil Nadu and District Election Officer of Madurai District made the Returning Officer to accept the invalid nomination of returned candidate which was defective in substantial character and it was to be rejected under section 30 (1), 36(4) and 36(5) of the Representation of People Act and non compliance of Rule 2 (2) (a) CE Rules 1961 and more particularly non compliance of Pare 13 of Symbols Order under the influence of Exs.X2, X14 & X22. Despite the Hon'ble Supreme Court consecutive orders to comply each election laws in letter and spirit as the statutory requirements of election laws must be strictly observed and people do not get elected by flagrant breaches of election laws. However, the constitutional authorities of election Officials itself committed grave violations for the furtherance of prospect of the returned candidate's election result is nothing but act of malice and its amount of corrupt practice too. The Supreme Court held what is malice in law in 2003 (4) SCC 739, which is extracted hereunder:
"12. The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking action". This is sometimes described as "malice in fact". "Legal malice" or "Malice in Law" means "something http://www.judis.nic.in 63 done without lawful excuse". In other words, " it is an act done wrongfully and willfully without reasonable or probable cause and not necessarily an act done from ill feeling and spite It is a deliberate act in disregard of rights of others" (see words and phrases legally defined, 3rd Edn., London Butterworths, 1989).
13. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object. Prof.Wade in his authoritative work on Administrative Law (8th Edn., at p.414) based on English decisions and in the context of allege illegal acquisition proceedings, explains that an action by the State can be described mala fide if it seek to acquire land for a purpose not authorised by the Act. The State if it wishes to acquire land, should exercise its power bona fide for the statutory purpose and for none other.
14. Legal malice, therefore, on the part of the sate as attributed to it should be understood to mean that the action of the State is not taken bona fide for the http://www.judis.nic.in 64 purpose of the Land Acquisition Act .....".
36. Therefore, the Returning Officer with act of malice improperly accepted the substantially defective nomination of the returned candidate against the provisions of Representation of People Act, 1951 and CE Rules 1961 as well statutory instructions issued by the Election Commission in Hand Book of Returning Officer on 03.11.2016. Despite the Forms A & B of returned candidate were not complied the conditions under Para 13 of Symbols order for allotment of reserved symbol and the same was duly established by the petitioner on 03.11.2016 during rapid enquiry at scrutiny, the Returning Officer again committed violation of allotting two leave symbol to the returned candidate violating the provisions of Para 13 of Symbols Order and statutory instruction in HB of Returning Officer in particular under Chapter VIII, 8.4.2.(o) with phrase of "if, and if only", 8.4.2.(p), etc. Therefore, having the Returning Officer accepted the nomination of the returned candidate illegally and violating all election laws which is nothing but improper acceptance and consequently it is to be declared the returned candidate's nomination was improperly accepted by the Returning Officer. The Hon'ble http://www.judis.nic.in 65 Supreme Court held that "......... It is not necessary for the respondent (election petitioner) to Returning Officer that the result of the election in so far as it concerns the returned candidate has been materially affected if the appellant's (returned candidate) nomination is declared to have been improperly accepted,...." And also held that "..... There is no requirement to Returning Officer that the result of the election of the returned candidate is materially affected once his nomination is declared to have been improperly accepted." in 2017 (2) SCC 487, (para 23 & para 26)
37. The learned counsel in so far as the issues II, III & VII are concerned with regard to the thumb impressions and attestation of Ms.J.Jayalalitha. Having been established that the nomination of returned candidate is improperly accepted by violating provisions of Representation of People Act 1951, CE Rules, 1961, Statutory instructions of Hand Book of Returning Officer and particularly Para 13 of Symbols Order. As far as the attestation is concerned that the Medical Officer did not obtained Ms. J.Jayalalitha's thumb impressions http://www.judis.nic.in 66 in his presence, hence it is not attestation legally. The relevant portion of deposition the Medical Officer, where he spilled beans as he was not at all present to attest the thumb impressions of Ms.J.Jayalalitha in Forms A & B. Q : What was the time you had attested the thumb impression of Ms. J.Jayalalitha?
A : At around 6.30 pm on 27.10.2016, I attested. (it is to be noted that he did not depose he obtained her thumb impressions more than 20 place in all Forms.) Q : When did you get Ex.X.2?
A : On 27.10.2016, at around 6.00pm, I was shown this letter by the Doctor treating Ms. J.Jayalalitha inside the ICU.
Q : The numbers '16/28' and '27/28' in Forms A & B indicate that you would have made endorsement in 28 places, is it not?
A : There are two extra A Forms thumb impressions were obtained and which I attested.
Q : you said that in two extra A Forms thumb impressions were obtained and you had attested them. Who obtained and what happened to those extra Forms?
A : When I went inside for attestation, those forms were http://www.judis.nic.in 67 there, but I do not know who obtained and what happened to those Forms.
Q : Is it correct to state that in your endorsement made in Ex.Xs.7 & 17 you have not mentioned that you have read over the contents of the said Forms to Ms. J.Jayalalitha and the same was understood by her? A : I did not write so in my endorsement.
Q : Mr. Babu Abraham who signed as witness in the Forms A & B has not stated that you have attested in his presence?
A : I have attested the thumb impressions in his presence. Q : Do you have any documentary proof like video, audio, still photo or any written record from Apollo Hospitals to show that you were present at the time of taking thumb impression of Ms.J.Jayalalitha?
A : I do not have any such record.
Q : Do you have any proof like video, still photo or any other written record for having visited MDCC unit of Apollo Hospitals where Ms.J.Jayalalitha was admitted on that day?
A : I do not have.
Q : Do you have any proof like video, still photo or any other http://www.judis.nic.in 68 written record to show that you had attested the thumb impression of Ms. J. Jayalalitha in her presence? A : I do not have.
Q : Out of two letters written by the election commission of India to CEO or TN and to the CEO of Pudhuchery?
A : I was shown two letters i.e., letter written by the Election Commission to the Chief election Officer, Tamil Nadu, and another letter written by the Chief election Officer, Tamil Nadu, to the Returning Officers. Q : Is it correct to state that you have not given any update with regard to the attestation in writing?
A : I have not informed anything in writing in this regard to the Government.
Q : Was Ex. X. 22 the letter written by the Chief election Officer, Tamil Nadu, to all Returning Officers read by you to Ms. J.Jayalalitha?
A : Yes.
38. The Ex.X10 marked by Chief election Officer, Tamil Nadu, which is mail receipt of Ex.X2 from Principal Secretary, Election Commission which was sent at 6.20pm on 27.10.2016. Ex.X11 is acknowledgment of Ex.X2 by the AIADMK party head quarters' office http://www.judis.nic.in 69 assistant 7.50pm on 27.102.16, whereas the timings of said documents were much later than the MO said to have read the Ex.X2 to Ms. J. Jayalalaitha. Likewise, the MO deposed he read Ex.X22 to her. The said document was confidential internal official letter between District Election Officers and Returning Officers only not for any person that too no political person. Ex.X22 was sent by mail by Chief election Officer, Tamil Nadu, to the District Election Officers at 7.08 pm on 27.10.2016. But the MO claimed that he received the same at 6.00 pm and read the same to her. Therefore, it is impossible to read the said Ex.X2 prior to issue to Chief election Officer, Tamil Nadu, or AIADMK party. Ex.X22 was also much later issued than the MO said to have read it to her. Therefore, this would prove the MO was not present to obtain any thumb impressions from Ms.J.Jayalalitha.
39. In another instance, he deposed that he did not Know who obtained thumb impression of Ms. J.Jayalalitha and those forms were there and he attested the same. Therefore having those thumb impressions were affixed in his absence, as per section 3 of the transfer of property Act, his attestation is not valid in the eye of the law.
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40. During the trial, the returned candidate filed his counter without denying the petitioner's averments material and he did not let in any witness in his side. He chose not to cross the witness of MO. Since in trial, through the MO, the petitioner proved that the thumb impression of Ms.J.Jayalalitha was doubtful and this Court ordered suo- motto to bring the original thumb impression of late Ms.J.Jayalalaitha from Prappana Agrahara Central Jail, Bengaluru, Karnataka to verify her thumb impressions of Forms A & B of returned candidate. However, he was very hurry enough to approach the Hon'ble Supreme Court to challenge this Court's order of bringing Ms. J.Jayalalitha's original thumb impression from Prappana Agrahara Central Jail, Bengaluru, Karnataka to verify her thumb impressions of Forms A & B of returned candidate. It is sufficient to establish that having the returned candidate and his party understood as the cat may be out of bag with regard to the suspicious thumb impressions of Ms.J.Jayalalaitha in Forms A & B.
41. This Hon'ble Court was pleased to list the matter on 03.08.2018 for returned candidate's argument. Since he passed away http://www.judis.nic.in 71 on 02.08.2018, this Court invoked jurisdiction under 116 of Representation of People Act 1951 on the petitioner's petition and was pleased to pass order for gazette publication to call for interested person if any to step into the shoes of late returned candidate and formed legal question as "violation of election laws by the election officials and consequently accepting the substantially defective nomination paper of demised returned candidate is not void". On the basis of publication dated 05.10.2018 the respondents 2 and 3 were permitted by this Court to be interested person under Section 116 of Representation of People Act 1951. Despite they became respondents, they unable to disprove that no violation committed by the election officials and the returned candidate's nomination was complete one.
42.Therefore the learned counsel prays to declare the election of the 1st respondent as returned candidate on 22.11.2016 for No.195 Thiruparankundram assembly constituency as null and void.
43. The learned counsel appearing for the third respondent would submit by way of written arguments that the third respondent being an ardent fan of MGR and Ms.J.Jayalalitha, he and his family members traditionally cast vote for Two leaves symbol, irrespective of http://www.judis.nic.in 72 candidate and on this capacity, he filed application to implead him, in response to the Gazette notification in No.36 dated 05.09.2018, by this Court calling for persons interested to challenge this election petition, in view of death of A.K.Bose, the first respondent. The learned counsel at the outset would submit that By-Election dated 19.11.2016 for the said 195, Thiruparankundram Assembly Constituency was held properly and no malpractice or whatsoever during the election. Since being local resident of constituency, the 3rd respondent well aware of those facts, and particularly the Nomination form of Form A and B were duly filled/executed in every respect in accordance with Election law, Rules and Orders etc., and the Election petitioner miserably failed to make probable case through evidence in accordance with law or on facts. The main contention of the election petitioner is that nomination Form A & B of A.K. Bose/Returned candidate (now deceased) were not duly attested or in other words they were not in accordance with Representation of People Act and relevant rules in vogue. The Nominations for the By-Election No.195, Thiruparankundram Assembly Constituency commenced on 26.10.2016, last day for filing nomination was 03.11.2016, scrutiny on 03.11.2016, polling on 19.11.2016, counting on 22.11.2016 and declaration of returned candidate on completion of counting. A.K.Bose belongs to AIADMK Party, and he http://www.judis.nic.in 73 was nominated by AIADMK Party, he filed his nomination on 28.10.2016, the said Nomination form was executed by AIADMK General Secretary Selvi.J.Jayalalithaa, who is the sole competent authority to sign Form A & B, it is well known fact that during the period of election she was admitted in Apollo Hospital, Greams Road, Chennai, for taking treatment of tracheotomy and inflamed right hand, due to which she was unable to put her signature as General Secretary of AIADMK party in Form A and B pertaining to nomination of AK Bose as party candidate and allotment of TWO LEAVES Symbol to him, in order to overcome bottleneck situation, the Presidium Chairman of the AIADMK party requested the Election Commission of India, consequently ECI by its letter dated 27.10.2016 issued guidelines to CEO Tamil Nadu, permitting “any Medical Officer Government Hospital” to attest the Thumb impression and also directed such attesting Doctor should scribe his full name and address” the sum and substance of the guidelines were scrupulously followed by the CEO Tamil Nadu, the Govt. Nominated the Medical officer namely Dr.P.Balaji, Professor of Minimal Access Surgery, Madras Medical College & Rajiv Gandhi Government General Hospital, Chennai, to attest the Execution of form A and B by Selvi.J.Jayalalitha, the said attesting medical officer was also witnessed by another Dr.Babu K.Abraham, Apollo Hospital, it is http://www.judis.nic.in 74 pertinent to submit that the said “Attester” Dr.P.Balaji also made an endorsement in his own hand writing to the effect that Ms.J.Jayalalitha affixed her left hand thumb impressions on her own in my presence” in form A and B, It was also witnessed by one another Dr.Babu.K.Abraham, the purpose of attestation is limited only authenticating the Thumb impression of Selvi.J.Jayalaitha as per Election commission of India guidelines, and particularly it is admitted fact that said Dr.P.Balaji is medical officer of a Government Hospital, no contra evidence was let in by the Election petitioner. Thus on this score the election petition shall be dismissed.
44. The nomination of a candidate sponsored by political party ought to be done only by President or General Secretary as the case may be, in AIADMK Party, the General Secretary is competent to nominate as per AIADMK party by-law/Regulations, Since, she was hospitalized and undergoing treatment, the request was made by next in command of AIADMK party to Election Commission of India through CEO-Tamil Nadu, due to which the Election Commission took the judicious and practical working arrangement for taking thumb impression instead of signature of Ms.J.Jayalalitha in accordance with law, the only requirement/condition that of ECI was that attestation by http://www.judis.nic.in 75 “Government Medical Officer along with seal containing his full name and address”. At the risk of repetition that the Form A and B duly complied with guidelines prescribed by the Election Commission of India. Hence the contention of the election petitioner is totally misconceived and baseless and Form A and B are duly followed procedure contemplated under the Election symbols (Reservation and Allotment) Order, 1968, as well the direction of the ECI was duly followed, thus Election petition liable to be dismissed on this score alone.
45. The learned counsel would further submit that that there is no material illegality that putting thumb impression instead of signature, due to medical condition of a person does not involve any illegality, much less defect, in every aspect that the Election petitioner did not make out case with solid evidence, and on mere surmises the mandate of the people should not disturbed, hence the Election petition ought to be dismissed as devoid of merits.
46. The Election Commission of India had released press note dated 17.10.2016, Ex.P1, for By-elections for 12 parliamentary constituency/assembly constituency. In continuance of the same, the http://www.judis.nic.in 76 Gazette Notification was issued on 26.10.2016, fixing last date for submission of nomination as 02.11.2016. The deceased first respondent had submitted his nomination on 28.10.2016 containing Forms A & B, in which, Thumb Impression of Ms.J.Jayalalitha, General Secretary (then) AIADMK was obtained, instead of obtaining her signatures, nominating the deceased first respondent for AIADMK. The election petitioner had sent his objection dated 03.11.2016 on the acceptance of nomination papers of the deceased first respondent. However, the nomination of the deceased first respondent was accepted and election was conducted on 19.11.2017 and on 22.11.2016 it was declared that the deceased first respondent was elected. The petitioner is before this Court, questioning the validity of the Forms A & B and illegal conduct of Returning Officer and prays to declare the election of the deceased first respondent as returned candidate on 22.11.2016 from No.195 Thiruparankundram Assembly Constituency as null and void.
Issue Nos.1 to 6 and 8 - Since the Issue Nos. 1 to 6 and 8 are interlinked with each other, the same are dealt with together.
47. In this regard, the election petitioner has stated in his election petition that the Election Commission of India has issued a http://www.judis.nic.in 77 press note on 17.10.2016 for filling up of casual vacancies in the Assembly Constituencies of 6 States including Tamil Nadu announcing by-election schedule for 195.Thiruparankundaram Assembly Constituency in the State of Tamil Nadu. The Schedule Nomination was started on 26.10.2016, the last date of filing/delivering nomination was fixed on 02.11.2016, the date of scrutiny of nominations on 03.11.2016, last date of withdrawal of nomination was 05.11.2016, the date of poll was 19.11.2016 and the date of counting was on 22.11.2016, finally the entire election schedule was to be completed on 24.11.2016.
48. The petitioner filed his nomination papers as DMK party's approved candidate along with necessary Forms A & B and affidavits on 31.10.2016 with returning officer at the office of Returning Office at Taluk Office, Thirunagar, Thirupparankundram. The District Supply and Consumer Protection Officer was appointed as Returning Officer (herein after referred to as “RO”) for conducting free and fair election. The RO had established her officer at Taluk Office and started her election work. On 26.10.2016, the RO started issuing nomination papers to contest the by-election and receiving nomination papers from every proposed contesting candidates till 3.00pm of 02.11.2016. http://www.judis.nic.in 78 The petitioner also submitted his election nomination papers, paid the election deposit and took oath before RO. On 03.11.2016 at 10.00am the RO started to scrutinize the nomination papers filled by the candidates, the petitioner along with his counsel and the returning candidate/1st respondent were present during the scrutiny process at RO office. Since, the returned candidate filed his nomination papers on 28.10.2016, who gained seniority in Sl.No.7 of the list of scrutiny process. The RO took the nomination papers for scrutiny and immediately pronounced that the returned candidate's nomination/first respondent was accepted in lightning speed, without asking any objection from any person over the acceptance of the nomination papers. The petitioner and one M.Murugiah asked the RO to receive the written objection over the nomination papers of the first respondent. The RO without looking into the details of objections, declared the first respondent's nomination papers are intact and accepted. Thereafter, the petitioner counsel explained the objections of accepting nomination papers of first respondent and the RO was not interested in listening their legal objections. The counsel for the petitioner argued that Forms A & B were not affixed signature by ink by the competent person of AIADMK party as per the clause 13 of order and the order states as there shall be no facsimile signature or http://www.judis.nic.in 79 signature by means of rubber stamp etc., these two forms are most vital and part and parcel of the nomination papers. Form-A containing the authorized person of a recognized state party's name, designation and specimen signature to issue Form-B. The Form-B is for indicating its approved candidate of such recognized State party signed by that party's competent persons, whose name and signature is affixed in Form-A. It is very important duty of every RO to verify carefully these forms whether these are proper and as per law with every recognized political party candidates. The counsel for the petitioner insisted the RO to reject the Forms A & B of the returned candidate and not to allot the symbol “Two Leaves” and brought notice about the Clause 19.1.1 of Chapter XIX of ROs hand book and clause 13 of Order by which the Forms A & B are defective and not in conformity with Election laws and Rules.
49. On 09.11.2016, the petitioner made written representation to the District Election Officer/District Collector, Madurai to direct the RO to produce the order copy of accepting the first respondent's nomination. The agent of the petitioner was called by RO office, where he was produced a order copy dated 05.05.2016 accepting the nomination of first respondent's nomination on 03.11.2016. The agent http://www.judis.nic.in 80 of the petitioner made an endorsement on the copy that despite made repeated demands, this order is produced/issued by putting ante-dated 05.05.2016 and acknowledged by his name with the date and time. It is clear that the RO has not followed any relevant provisions of Election Laws and Rules on scrutinizing nominations, receiving objections, conducting summary enquiry in prescribed manner in accepting first respondent's nomination and without passing order are blatant violation of election laws. The letter dated 27.10.2016 sent by the Election Commission of India to the Chief Electoral Office, Tamil Nadu states that on the request of CEO of Tamil Nadu by its letter dated CEO/26102016/2016, dated 26.10.2016 with the representation of AIADMK party regarding authentication of thumb impression of M/s.J.Jayalalitha, General Secretary of AIADMK on Forms A & B in terms of paragraphs 13 of the symbols order for the current election to legislative assembly which is not at all official letter.
50. The first respondent/returned candidate/A.K.Bose (deceased) in his counter statement has stated that to fill up the casual vacancy caused by the death of M.Seenivel, the Election Commission announced by-election to No.195, Thiruparankundram Constituency in Tamil Nadu. The first respondent was nominated and http://www.judis.nic.in 81 approved candidate by the political party viz., AIADMK. Thereafter, he submitted the nomination papers along with other relevant and necessary documents to the RO on 28.10.2016. The General Secretary, Selvi.J.Jayalalitha of AIADMK party affixed her thumb impressions in Forms A and B in the presence of Dr.P.Balaji, Professor, Minimal Access Surgery, Madras Medical College & Rajiv Gandhi General Hospital, Chennai and the same was witnesses by Dr.Babu K.Abraham of Apollo Hospitals, Greams Road, Chennai. After scrutiny of the nomination papers, on 03.11.2016, the returning officer accepted the same. In the election held on 19.11.2016, the first respondent was declared as successful candidate by securing 1,13,032 votes and the petitioner herein secured 70,362 votes, which is more than 42,670 votes than the petitioner.
51. The RO followed the procedures contemplated under Election laws before accepting the nomination papers received from the candidates. After scrutinising the nomination papers, the RO sought to know whether there was any objections from anyone. At that time, the petitioner and one Murugaiah, an independent candidate objected the acceptance of the nomination papers and stated that in Form A the signature of the AIADMK General Secretary who was authorised to http://www.judis.nic.in 82 intimate the name of the proposed candidate fixed by the Registered political party was absent. The Election Commission of India by its letter dated 27.10.2016, filed along with the nomination papers permitted a medical officer of any Government Hospital to act as an officer before whom the thumb impression may be affixed on Form-A and B of Selvi.J.Jayalalitha or who may attest such thumb impression. The Election Commission also directed the Doctor attesting the Thumb impression to either affix his rubber stamp or in the alternative to write down his full name and address while attesting the thumb impression. The same was directed to communicate to AIADMK party through Chief Electoral Officer. Dr.Balaji attested the thumb impressions of Selvi.J.Jayalalitha with an endorsement to the effect that the signatory affixed her left thumb impressions on her own in his presence. The affixture of thumb impressions in Form-A & B and the attestation by the Government Medical Hospital Doctor were only as per the letter issued by the Election Commission of India. There is nothing improper in accepting this respondent's nomination to contest the election on Two leaves symbol as the candidate set by AIADMK party. The petitioner did not raised any objection before the Returning Officer about the genuineness of the thumb impression of Selvi.J.Jayalalitha. The reason given by the petitioner for shifting the http://www.judis.nic.in 83 office from Thiruparankundram is denied as incorrect and it is only an invention of the petitioner to make allegations against the RO. The petitioner has not stated anything as to how the shifting of the office by the RO from Thiruparankundram to Madurai has materially affected the result of the election.
52. Heard the learned counsel for the election petitioner, he would submit that the issuance of EX.X2 by Prinicipal Secretary, Election Commission, is illegal, act of malice, without jurisdiction and violation of Election law laid down by the Hon'ble Supreme Court under Art. 141 of Constitution, it was not issued under Art. 324 of Constitution, nor issued under Para 18 of Symbol Order nor issued in the manner known to law. It was issued by Principal Secretary is fraud played on highest Constitution Office of Election Commission with connivance of Chief Election Officer, Tamil Nadu, and AIADMK Party, hence, permitting the returned candidate to file his nomination along with thumb impressions in Forms A & B is void, hence the act of Principal Secretary materially affected the result of the election which is invalid and incomplete nomination under section 33(1) of Representation of People Act 1951.
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53. Further, the act of Returning Officer, who accepted the invalid nomination improperly and allotted the two leaves symbol to the returned candidate which materially affected the result of the petitioner's election, because if the invalid and defect in substantial nature of nomination was rejected by the Returning Officer, there would be no question of election against two leaves symbol, so the petitioner's victory was imminent in the absence of two leaves symbol. The petitioner has raised the pleas with regard to improper acceptance, violation of conducting enquiry in scrutiny, complaint against the improper acceptance of returned candidate's nomination, illegal allotment of two leaves symbol to the returned candidate's invalid nomination and the reason for materially affected the result of petitioner's election.
54. He would further submit that as first incident, On 17.10.2016 the election Commission, the Returning Officer issued notification on 26.10.2016 under rule 3 of Conduct election Rules 1961 (CE Rules) by fixing venue of Returning Officer and timings of delivering and receiving nominations from proposed candidates along with date of scrutiny and declaring the valid candidate list for the said by-election http://www.judis.nic.in 85 under Form 1, i.e. Ex.X. 15. The Returning Officer set in motion the election process by way of the above said election notification at #195, Thirupparankundram Assembly Constituency. As per the provisions of Representation of People Act 1951, valid nominations shall be presented/filed before the Returning Officer under section 33 (1) of Representation of People Act, 1951. The nominations may be filed in two categories. The first category is that the candidates set up by Political parties (recognized National and State parties and unrecognized National and State parties) and the second category is that candidates not set up by any political parties i.e, independent candidates. Candidate setup by recognized political party shall file nomination along with prescribed documents which are called Form A & B as prescribed in Para 13 of Symbols Order. These candidates set up by political party nomination is sufficient to propose by one proposer, who shall be the elector of same constituency. The candidates, who are not set up by political party shall be proposed by 10 electors of the same constituency. The Returning Officer is cast upon the duty of independent Quasi Judicial Authority during scrutiny of enquiry under section 36 of Representation of People Act,1951. The statutory instruction of Hand Book for Returning Officers in Chapter - VI, Para 6.2 explains the duty of the Returning Officer during scrutiny http://www.judis.nic.in 86 of nominations that the Returning Officer is functioning as Quasi Judicial authority and the Returning Officer has to discharge the duty with complete judicial detachment and in accordance with the highest judicial standards. It further instruct the Returning Officers that they should not take any direction from any superior authority including CEO or the Commission's observer validating the nominations during scrutiny.
55. If any candidate in his nomination failed to comply any of conditions prescribed in Para 13 of Symbols Order and violating the law laid down with regard to the Para 13 of Symbols Order is amount to non compliance of the mandatory nature provision of election law. Further such nomination shall be defective in substantial nature, hence such nomination shall be rejected under section 36 (4) of Representation of People Act 1951 and also for rejecting incomplete nomination under section 33(1) of Representation of People Act 1951. This is what the instructions of Hand Book of Returning Officers, provisions of Representation of People Act 1951 and provisos of Symbols Order made to act the Returning Officer as well the law laid down by Supreme Court in this regard. Since the Returning Officer is cast upon the duty of discharging Quasi Judicial nature of function in http://www.judis.nic.in 87 scrutiny of nominations and the Returning Officer has to discharge the duty with complete judicial detachment and in accordance with the highest judicial standard, the Returning Officer in this by-election wholly and entirely failed and violated all election laws to accept improperly the substantial defective nomination of returned candidate and illegally allotted two leave symbol for the furtherance of prospect of the result of election for returned candidate. The Returning Officer failed in discharging her Quasi Judicial function with detachment. As per her deposition, On 28.10.2016 prior to the returned candidate filing his nomination as candidate set up political party, the District Election Officer, Madurai called her in his office to hand over the copy of Exs.X.2 and XX22 in person. While the Returning Officer appeared before the District Election Officer to get those documents, she was given instruction to follow the clarification issued by election Commission, i.e., Ex.X.2. The Ex. X 22 is the covering letter of the Chief election Officer, Tamil Nadu, addressing all District Election Officers and all Returning Officers in those assembly constituencies elections were on going. Despite the Principal Secretary, Election Commission did not ask the Chief election Officer, Tamil Nadu, to communicate the Ex.X2 through District Election Officers, the Chief election Officer, Tamil Nadu, in said letter instructed all District Election http://www.judis.nic.in 88 Officers to Communicate the Election Commission's letter dated 27.10.2016 (Ex.X. 2) to Returning Officers to follow the instructions of Election Commission dated 27.10.2016 (Ex.X.2). It is further pertinent to note that the District Election Officer in his deposition admitted as he gave oral instruction to Returning Officer to follow the instruction of Election Commission in Ex.X.2 for AIADMK candidate. In fact it was not at all his business of District Election Officer to issue instruction to Returning Officer as what to do the Returning Officer in scrutiny with regard to the returned candidate's substantially defective nomination. This is how the conspiracy of trio further elongated via District Election Officer, Madurai, who gave the idea to the Returning Officer to accept the nomination of AIADMK party candidate in case the Forms A & B are not signed in ink only as per mandatory provision of Para 13 of Symbols Order. Further the learned counsel would submit that the Ex.X2 instructed the Tamil Nadu Chief Election Officer to communicate the same to respective Returning Officers directly. However, the Chief election Officer, Tamil Nadu, wanted to stress on the Ex.X. 2 to give clear instruction by District Election Officer, Madurai to Returning Officer in the meaning of accepting returned candidate's Forms A & B with affixing thumb impression, he sent Ex.X. 2 unnecessarily to the District Election Officer, Madurai who is the immediate superior boss of http://www.judis.nic.in 89 the Returning Officer. This is how the Chief election Officer, Tamil Nadu, cleverly played to accept the substantially defective nomination of the returned candidate by Returning Officer. The Returning Officer admitted in her chief examination as well in cross examination that on receipt of the said Ex.X 2 & 22 from District Election Officer, Madurai, with instruction as above said, she formed opinion (pre-decision) to accept the nomination of AIADMK party candidate if the Forms A & B are affixed thumb impression instead of signature in ink only. It was decided by the election officials to accept the defective nomination of the returned candidate through Returning Officer even prior to filing the nomination by the returned candidate as set up by political party. On 28.10.2016, at about 2.15 pm, the returned candidate filed his nomination as the Returning Officer expected. The Forms A & B under Para 13 of Symbols Order were not complied by the returned candidate. Instead of complying the mandatory nature of conditions that "sign", "in INK Only", the returned candidate filed the Forms A & B with the alleged thumb impressions of his party General secretary Ms. J. Jayalalitha and the same was said to have authenticated by one Dr. P.Balaji, Professor of Rajiv Gandhi Government General Hospital, Chennai as Medical Officer. The copy of the said nomination was displayed in the notice board of the office of Returning Officer and it http://www.judis.nic.in 90 was came to know publically such flagrant violations and non- compliance of mandatory nature of Para 13 of Symbols Order. Therefore on 03.11.2016, the petitioner attended scrutiny process with his advocate to object the defective nomination of the returned candidate to accept. Admittedly the returned candidate did not attend the scrutiny process, but, he was represented by bunch of his advocates. Another independent candidate one Mr. Murugaiah also filed his objection against the returned candidate's nomination. It was not at all heard by the Returning Officer nor passed order over the said objection.
56. After hearing the arguments of the learned counsel for the election petitioner, when the matter was posted for hearing arguments of the 1st respondent, at that stage since the first respondent/returned candidate died, none appeared on behalf of the returned candidate.
57. After completing the gazette publication, the second and third respondents entered appearance through their counsel. The learned counsel for the third respondent would submit that by-election dated 19.11.2016 for the said 195, Thiruparankundram Assembly Constituency was held properly and no malpractice or whatsoever http://www.judis.nic.in 91 during the election. Since being local resident of constituency, the 3rdrespondent well aware of those facts, and particularly the Nomination form of Form A and B were duly filled/executed in every respect in accordance with Election law, Rules and Orders etc., and the Election petitioner miserably failed to make probable case through evidence in accordance with law or on facts. The main contention of the election petitioner is that nomination Form A & B of A.K. Bose/Returned candidate (now deceased) were not duly attested or in other words they were not in accordance with Representation of People Act and relevant rules in vogue. The Nominations for the by-election No.195, Thiruparankundram Assembly Constituency commenced on 26.10.2016, last day for filing nomination was 03.11.2016, scrutiny on 03.11.2016, polling on 19.11.2016, counting on 22.11.2016 and declaration of returned candidate on completion of counting. A.K.Bose belongs to AIADMK Party, and he was nominated by AIADMK Party, he filed his nomination on 28.10.2016, the said Nomination form was executed by AIADMK General Secretary Selvi. J.Jayalalithaa, who is the sole competent authority to sign Form A & B, it is well known fact that during the period of election she was admitted in Appollo Hospital, Greems Road, Chennai, for taking treatment of tracheotomy and inflamed right hand, due to which she was unable to put her signature http://www.judis.nic.in 92 as General Secretary of AIADMK party in Form A and B pertaining to nomination of AK Bose as party candidate and allotment of TWO LEAVES Symbol to him, in order to overcome bottleneck situation, the Presidium Chairman of the AIADMK party requested the Election Commission of India/ 33rdrespondent, consequently ECI by its letter dated 27.10.2016 issued guidelines to CEO Tamil Nadu / 32ndrespondent, permitting “any Medical Officer Govt. Hospital” to attest the Thumb impression and also directed such attesting Doctor should scribe his full name and address” the sum and substance of the guidelines were scrupulously followed by the CEO Tamil Nadu, the Govt. Nominated the Medical officer namely Dr.P.Balaji, Professor of Minimal Access Surgery, Madras Medical College & Rajiv Gandhi Govt. General Hospital, Chennai, to attest the Execution of form A and B by Selvi.J.Jayalalithaa, the said attesting medical officer was also witnessed by another Dr. Babu K.Abraham, Apollo Hospital, it is pertinent to submit that the said “Attester” Dr.P.Balaji also made an endorsement in his own hand writing to the effect that Ms.J.Jayalalitha affixed her left hand thumb impressions on her own in his presence” in form A and B, It was also witnessed by one another Dr.Babu.K. Abraham, the purpose of attestation is limited only authenticating the Thumb impression of Selvi.J.Jayalaithaa as per Election commission of http://www.judis.nic.in 93 India guidelines, and particularly it is admitted fact that said Dr.P.Balaji is medical officer of a Govt Hospital, no contra evidence was let in by the Election petitioner.
58. Heard both sides and perused the oral and documentary evidences produced before this Court during the trial and considered the rival submissions made by the learned counsel on either side.
59. It is not in dispute that the Election Commission of India had released Press Note dated 17.10.2016, Ex.P1, for by-elections for 12 Parliamentary Constituency/Assembly Constituency. In continuance of the same, the Gazette Notification was issued on 26.10.2016, fixing last date for submission of nomination as 02.11.2016. The AIADMK party has sent a letter dated 26.10.2016 addressed to the Chief Electoral Officer & Principal Secretary, Secretariat, Chennai, seeking special permission for affixing Left Thumb Impression of the General Secretary of AIADMK in Forms A & B due to ill-health. The said letter was marked as Ex.X3, the relevant paragraphs are extracted hereunder :-
“Election Commission of India has announced General Election to 134.Aravakurichi Assembly http://www.judis.nic.in 94 Constituency and 174.Thanjavur Assembly Constituency and By-election to 195.Thiruparankundram Assembly Constituency of Tamil Nadu State and 17.Nellithope Assembly Constituency of Puducherry State. On behalf of All India Anna Dravida Munnetra Kazhagam, General Secretary Selvi.J.Jayalalitha is authorised to sign Form – A & B. Our General Secretary is hospitalized in Apollo Hospitals, Greams Road, Chennai since 22.09.2016. She is unable to affix her signature in the Form A & B. Therefore Election Commission is requested to authorise AIADMK General secretary to affix her left thumb impression in Form A & B in the presence of Duty Doctor, Apollo Hospitals, Greams Road, Chennai. Since, our General Secretary is admitted in Multi Disciplinary Critical care Unit, to avoid infection, visitors are not permitted inside the said unit. Therefore, treating Doctor namely Duty Doctor may be authorised to obtain the thumb impression in Form A & B.”
60. The Election Commission of Tamil Nadu, sought for clarification on Ex.X3 from Election Commission of India through http://www.judis.nic.in 95 Ex.X4. The relevant paragraphs of the same are extracted hereunder:-
“ I am to invite your kind attention to the reference first cited wherein, the Election Commission's clarifications on the signing of Form-A and Form-B in ink in Section 13(e) of Symbol Order also means left thumb impression of the said office bearer.
2. Thiru.E.Madhusudhanan, Presidium Chairman, All India Anna Dravia Munnetra Kazhagam, in his letter dated 26.10.2016, has stated that since the General Secretary is admitted in Multi-Disciplinary Critical Care Unit in Apollo Hospitals, seeking special permission for affixing left thumb impression of the General Secretary of AIADMK in Form-A and Form-B for the General Elections to
134.Aravakaurichi and 174.Thanjavur Assembly constituencies and bye-election to 195.Thiruparankundram Assembly constituency of Tamil Nadu State and
17.Nellithope Assembly Constituency of Puducherry State.
A copy of the representation received from All India Anna Dravida Munnetra Kazhagam is enclosed.
3. I am to state that since the above representation is based on the medical grounds, it is recommended for http://www.judis.nic.in 96 consideration of the Election Commission of India.
4. I am to request you kindly obtain Commission's clarification on the above matter and communicate the same to this office early.”
61. For which the Election Commission of India had sent a reply dated 27.10.2016, the relevant paragraphs are extracted hereunder:
“2. The Commission has considered the matter and in view of the position explained in the letter of AIADMK, the Commission has specified the Medical Officer of any Govt. Hospital as the officer before whom the thumb impression may be affixed on Forms A & B by Ms.J.Jayalalitha, and who may attest such thumb impression.
3. This may be conveyed to the AIADMK and to the Returning Officers concerned. The Medical Officer attesting the thumb impression should be informed that he should either affix his rubber stamp or alternatively write down his full name and address while attesting the thumb impression.”
62. The above information was communicated to all the Returning Officers and accordingly one Mr.Balaji, Professor of Minimal Access Surgery Madras Chennai, had attested the thumb impression http://www.judis.nic.in 97 obtained from Ms.J.Jayalalitha in Forms A & B and presented the same before the Returning Officer. The petitioner had sent his objections dated 03.11.2016 marked as Ex.P5 during scrutiny process stating that Forms A & B submitted by the returned candidate suffered from non-compliance of the mandatory requirements of the Conduct of Election Rules, 1961. Instead of complying the mandatory nature of conditions that "sign", "in INK Only", the returned candidate filed the Forms A & B with the alleged thumb impressions of his party General secretary Ms. J. Jayalalitha and the same was said to have attested by one Dr. P.Balaji, Professor of Rajiv Gandhi Government General Hospital, Chennai, as Medical Officer. The election petitioner had also sent compliant in this regard dated 03.11.2016/Ex.X5 addressing to the Chief Election Commission of India and to the Chief Electoral Officer, Tamil Nadu. Ex.X7 is the alleged Form A, in which thumb impression of Ms.J.Jayalalitha was affixed and attestation was also made by P.W.7. However, the Forms A & B said to be the defective one were accepted by the Returning Officer and election was conducted and on 22.11.2016 the returned candidate was declared as elected.
63. Now the point for consideration is whether the attestation http://www.judis.nic.in 98 made in Forms A & B submitted by the returned candidate was in compliance of the mandatory provisions of Representation of People Act, 1951, Conduct of Election Rules 1961, para 13 of Symbols Order, Para 19.1.1. of the Hand Book for Returning Officer and law laid down by the Hon'ble Supreme Court. To establish the above said question of law first will see how the provision of Representation of People Act 1951 instruct the prospective candidate for election whoever it may concern, they should file their nomination under the Section 33 of the Representation of People Act 1951. The Provision of law is that
33. Presentation of nomination paper and requirements for a valid nomination:- (1) on or before the date appointed under clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of 11 o'clock in the forenoon and 3 o'clock in the afternoon deliver to the RO at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.
Interpretation - Section 2 of the Representation of http://www.judis.nic.in 99 People Act is extracted hereunder :-
(i) “sign” in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed. (it was inserted by Act 27 of 1956) Interpretation - Section 2 and 2(a) of the Conduct of Election Rules, 1961 is extracted hereunder :-
(2) For the purposes of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if-
(a) he has placed a mark on such instrument or other paper in the presence of the Returning Officer or the Presiding Officer or such other Officer as may be specified in this behalf by the Election Commission.
Definition and Interpretation of Symbols Order is extracted hereunder :-
*****
(b) “Commission” means the Election Commission of India constituted under Article 324 of the Constitution.
http://www.judis.nic.in 100 ***** *****
(h) “Political Party” means an association or body of individual citizens of India registered with the Commission as political party under Section 29A of RP Act 1951, (with effect from 15.06.1989 notification) Para : (13) When a candidate shall be deemed to be set up by a political party :- For the purpose of an election from any parliamentary or assembly constituency to which this Order applies, a candidate shall be deemed to be set up by a political party in any such parliamentary or assembly constituency, if, and only if,-
(a) the candidate has made the prescribed declaration to this effect in his nomination paper;
(aa) the candidate is a member of that political party and his name is borne on the rolls of members of the party;}
(b) a notice by the political party in writing, in Form B, to that effect has not later than 3 p.m. On the last date for making nominations, been delivered to the returning Officer of the Constituency;
c) the said notice in Form B is signed by the President, the Secretary or any other office bearer of the party, and the President, Secretary or such other office bearer sending the notice has been authorized by the party to send such notice;
d) the name and specimen signature of such authorized person are communicated by the party, in Form http://www.judis.nic.in 101 A, to the Returning Officer of the constituency and to the Chief Electoral officer of the {State or Union Territory concerned}, not later than 3 p.m. On the last date for making nominations;
And
(e) Forms A and B signed, in ink only, by the said office bearer or person authorized by the party: Provided that no facsimile signature or signature by means of rubber stamp, etc., of any such office bearer or authorized person shall be accepted and no form transmitted by fax shall be accepted.
*****
***** ”
Clause 19.1.1 of Handbook for Returning
Officer/Candidates issued by the Election Commission of India in the year 2014 :
“19.1.1 Sub Rule (2) (c) of the Rule 2 of the Conduct of Elections Rule, 1961 lays down that a person who is unable to write his name shall be deemed to have signed on instrument or a paper if he has placed a mark on such instrument or other paper in the presence of Returning Officer or the Presiding Officer or such other officer as may be specified in this behalf by the Election http://www.judis.nic.in 102 Commission. The Commission has accordingly, specified every officer belonging to an administrative service not below the rank of a Sub-Divisional Officer as an officer in whose presence such mark may be placed.” The sum and substance is that the nominations, particularly shall be completed in the prescribed form under Section 33 (1) of the Representation of People Act. Unless it is completed as per this section, the nomination of the candidate shall be rejected by the Returning Officer.
64. The candidate set up by a political party shall file authorization notice of his Party in Forms A & B under the Para 13 of Symbols Order to get his party's Symbol from the Reserved Symbol. If the candidate set up by the political party failed to comply any one of the conditions laid down in Para 13 of Symbols Order in his/her nomination, it is amount to non compliance of Section 33(1) of Representation of People Act 1951 hence it become defective in substantial nature. Therefore, it is mandate that recognized political party's candidate shall file his nomination along with the above said original Forms prescribed in Para 13 of Symbols Order as to comply the Section 33(1) of Representation of People Act to be a complete http://www.judis.nic.in 103 nomination.
65. In this regard, the Hon'ble Supreme Court laid down law particularly in Para 13 of Symbols Order that non-compliance of the said condition would lead the defective in substantial nature, such nominations shall be rejected at scrutiny itself. The Hon'ble Supreme Court held in the case of Ramesh Rout v. Ranindra Noth Rout reported in 2012 (1) SCC 762, the relevant portion of the judgment is reproduced hereunder :-
" 40. In Krishna Mohini Vs. Mohinder Nath Singh case (2000 (1) SCC 145)
34. .......... In order to be a candidate set up by a registered and recognised political party so as to take advantage of being proposed by a single elector, all the four requirements set out in clauses (a), (b), (c) and (d) of para 13 of (1968 Order) must be satisfied."
41. Clause (e) of Para 13 of the 1968 order is equally important. it reads, 'Forms A and B are signed, in ink only, by the said office bearer or person authorized by the party'. The proviso appended to Para http://www.judis.nic.in 104 13 makes a provision that no facsimile signature or signature by means of rubber stamp, etc., of any such office bearer or authorized person shall be accepted and no form transmitted by fax shall be accepted. In other words, a candidate proposed by a single elector alone, to be treated as a candidate set up by a recognised political party, the filing of notice and communication in Forms A & B referable to clauses (b), (c) and (d) and in accord with clause (e) of Para 13 of the 1968 Order is essential and on its non-compliance of nomination of such candidate is liable to be rejected .
42. That clause (e) of Para 13 of the 1968 Order does not use expression 'shall be signed' is obvious from a bare reading of the provision but the significance of the word "only" therein cannot be ignored.
43. In Concise Oxford English Dictionary (10th Edn. Revised), the word "only" is explained.
"Only - adj. 1.and no more or nothing more besides .... - adj. alone of its or their kind; single or solitary"
44. In Webster Comprehensive Dictionary, http://www.judis.nic.in 105 International Edn. (Vol.2), the word "only" is defined thus :
Only (on'ly) adv. ... 2. In one manner or for one purpose alone...... 4. Solely: merely; exclusively:
limiting a statement to a single defined person, thing or number. - adj. 1 Alone is in its class; having no fellow or mate; sole; single; solitary:
45. The word "only" is ordinarily used as an exclusionary term. In the American case own Vs. Eisner (US at P.425) the Court said : ( L Ed p.376) ".... A Word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstance ad the time in which it is used."
46. In ascertaining the meaning of the word 'Only' , its placement is material and so also the context in which the word has been used. The use of the word 'Only' in clause (e), Para 13 1968 Order emphasises that Form A & B are to be signed in ink by the office bearer or person authorised by the recognised part and in no other way. Thus, it excludes any other mode of filing http://www.judis.nic.in 106 Forms A & B when a candidate is set up by a recognised political party. In our view, therefore, the word 'Only' used in clause (e) of Para 13 is indicative of the mandatory character of that provision.” Despite so, the Returning Officer was under influence of the Election Commission's letter in Ex.X.2 and the instruction of District Election Officer, Maduari in person dated 28.10.2016 along with Ex.X.22, improperly accepted the nomination of the returned candidate by which materially affected the result of the petitioner's election. The clarification sought for by PW3/Chief Electoral Officer, Tamil Nadu from PW6 through Ex.X1 itself is in violation of the law laid down by the Hon'ble Supreme Court.
66. The Hon'ble Supreme Court, in the case of Ram Phal Kundu v. Kamal Sharma reported in 2004 (2) SCC 759, the relevant portion is hereunder:
"................. Therefore, this exercise should be done strictly in accordance with Paras 13 and 13A of the Symbols Order and extrinsic evidence given in derogation thereof cannot be looked into." Again it held in the same judgment that "14. If instead of deciding the http://www.judis.nic.in 107 matter in accordance with Paras 13 and 13A of Symbols Order, it is decided on the basis of extrinsic evidence (oral or document) given (here in our case Ex.X. 2, document, issued by Election Commission), it is capable of a good deal of misuse."
The Apex Court again stressed the same that "....... Applying the said principle (power is given to do a certain thing in a certain way, the thing must be done in that way only), we are of the opinion that the question as to who shall be deemed to have been set up by a political party has to be determined strictly in accordance with Paras 13 and 13A of the Symbols Order for this purpose......"
Under these context, despite the prevailing election laws in particular Para 13 of Symbols order is in force, the Returning Officer acted in don't care manner to improperly accept the defective nomination of the returned candidate.
67. The attestation under the Representation of People Act is not simple one but it is to be done in letter and spirit. The Hon'ble http://www.judis.nic.in 108 Supreme Court has held in AIR 1954 SC 510 in the case of Rattan Anmol Singh Vs. Atma Ram in para 7 to 14 held that the attestation is not mere technical, it is substantial and the attestation shall be done as in the case of WILL or mortgage.
68. In another occasion the Hon'ble Supreme Court in the judgment reported in 1969 (2) SCC 218 in the case of Ram Dayal v. Brijraj Singh in para 4 it is held as follows :-
"whenever signature is necessary, must be in the strict accordance with the requirements of the Act and where the signature cannot be written it must be authorized in the manner prescribed by the rules. Attestation is not a mere technical or unsubstantial requirement within the meaning of section 36(4) of the RP Act 1951 and cannot be dispensed with".
Despite the attestation was neither in accordance with election laws nor as per law laid down by Apex Court, the Returning Officer accepting the said defective nomination is act of malice in law.
69. In yet another occasion, the Hon'ble Supreme Court in the case of Ram Sukh v. Dinesh Aggarwal reported in 2009 (10) SCC http://www.judis.nic.in 109 541 in para 23 it is held as follows :-
"23. There is quarrel with the proposition that the instructions contained in the Hand Book for the Returning Officers are issued by the election Commission of India in exercise of its statutory functions and are, therefore binding on the Returning Officers. They are obliged to follow them in letter and sprit. ............"
70. In the recent decision of the Hon'ble Supreme Court in the case of Mairembam Prithiviraj v. Pukhrem Sharatchandra Singh reported in 2017 (2) SCC 487 held in paragraphs 23 and 26 that :
"......... It is not necessary for the respondent (election petitioner) to Returning Officer that the result of the election in so far as it concerns the returned candidate has been materially affected if the appellant's (returned candidate) nomination is declared to have been improperly accepted,...."
"..... There is no requirement to Returning Officer that the result of the election of the returned candidate is materially affected once his nomination is declared to have been improperly accepted."
http://www.judis.nic.in 110
71. On reading of the above provisions, the General Secretary of AIADMK should have signed in 'ink' and no thumb impression is permissible under law. If at all only due to medical condition of the Ms.J.Jayalalitha, the Election Commission had granted permission to obtain thumb impression, it should have specified any one of the officers belonging to an administrative service not below the rank of Sub Divisional Officer in whose presence such mark may be placed. On a careful perusal of the evidence of the witnesses, no one has stated about the physical and mental status of Ms.J.Jayalalitha before issuing Ex.X2 and even Ex.X3 was not attached with any medical proof for ill-health of Mr.J.Jayalalitha stating that she was not in a position to sign. On reading of the above provisions, it is clear that no Medical Officer as stated by the Election Commission of India in letter dated 27.10.2016, is a competent person to attest the thumb impression and it should be the officer in the administrative service not below the rank of a Sub Divisional Officer.
72. Admittedly, in this case, no such officer had attested the thumb impression of Ms.J.Jayalalitha in Forms A & B. The Election Commission of India as well as the Chief Electoral Officer, Tamil Nadu http://www.judis.nic.in 111 has not taken any effective steps to ascertain the physical and mental status of Ms.J.Jayalalitha. Particularly when Ex.P3 was not annexed with any medical certificate issued by competent medical officer. The CEO admittedly has not ascertained by visually, directly or through competent medical officer or through any valid medical certificate. The Election Commission of India should have advised the Chief Electoral Officer, Tamil Nadu to ascertain the medical status of Ms.J.Jayalalitha. Instead, the Election Commission through Ex.X2, permitted to affix thumb impression attesting by any Medical Officer, which itself is contrary to the Election laws and the law laid down by the Hon'ble Supreme Court. Further, the name of Dr.P.Balaji was not specified by the Election Commission, he was referred by the Government of Tamil Nadu and not by the Election Commission. This Court is of the considered view that the Forms A & B are found defective as far as clause 13(c), (d) and (e) of the Election Symbols Reservation and Allotment Order, 1963.
73. From the evidence of P.W.5, Returning Officer, it is clear that she did not follow the Election laws, instead acted as mouth piece of the ruling party by accepting the defective nomination of the returned candidate knowing fully well the nomination of the returned candidate http://www.judis.nic.in 112 is materially defective. The Election Commission, being an independent body, it is very unfortunate, it was acting as mouth piece of ruling party. Even, in evidence, no one has stated that they have seen Ms.J.Jayalalitha and no one stated about the treatment, which had been given to her. Admittedly, Ms.J.Jayalalitha had not retrieved and there is no proof to show that before ordering or after affixing thumb impression in Forms A and B submitted by the returned candidate, Ms.J.Jayalalitha was in a conscious state of mind (sound disposing state of mind). It is fortunate for the returned candidate and all the persons who aided and assisted him, that Ms.J.Jayalalitha is no more. Atleast, if she alive, this Court could have extracted truth regarding the thumb impression affixed in Forms A & B. The Election Commission of India had not interpreted the Election law in permitting the AIADMK party to affix thumb impression that too not in the presence of the officials as stated under clause 19.1.1. The returned candidate did not come into witness box to adduce any evidence on his behalf. The Election Officials have not taken any effective steps to prove that they have followed election laws and they have acted in accordance with law, instead, they simply filed applications to strike off their names from the array of respondents in the Election Petition, without even filing their written statements. During trial, the election petitioner http://www.judis.nic.in 113 summoned all the election officials viz., PW3, PW4, PW5 and PW6 they have given evasive reply regarding applicability of Election Laws, Rule, Guidelines, Symbols Order and Hand Book for Returning Officer. There is no evidence to show that Ms.J.Jayalalitha was in a conscious state of mind of understanding the content of the documents, in which she affixed her thumb impression and whether it was obtained, while she was in sound disposing state of mind. The alleged attestation of P.W.7 was not made in the presence of Returning Officer or the Presiding Officer or such other officer specified by Election Commission. Even P.W.7 was not directly authorised by Election Commission as contemplated under Clause 19.1.1 of Hand Books for Returning Officer i.e, Ex.X2 does not content the name of Dr.P.Balaji and content only Medical Officer of any Government Hospital. But, Dr.P.Balaji was nominated by the Government. It is pertinent to note that at the relevant point of time, AIADMK party was ruling party and Selvi.J.Jayalalitha was the Chief Minister of Tamil Nadu. PW7 is not the Doctor, who had given treatment to Ms.J.Jayalalitha before attesting the left Thumb Impression. The attestation should have been video graphed and produced before the Returning Officer and also before this Court. In the absence of any documents showing that Ms.J.Jayalalitha was not in a position to sign therefore, the thumb http://www.judis.nic.in 114 impression was obtained, while she was in concious and the non compliance of mandatory provisions, this Court is of the view that the Forms A & B are defective and materially affected. Hence the Issue Nos.1 to 6 and 8 are answered in favour of the election petitioner, observing that the Forms A & B are defective one.
Issue No.7
74. In this regard, the election petitioner has stated in his election petition that on 03.11.2016, the petitioner sent his appeal by way of email to Election Commission of India, Chief Election Commissioner and Chief Electoral Officer to intervene in between the time to correct the said violative action of RO. Having more than 36 hours in their hands, the election officials/respondents failed to abide by election laws and rules and thereby permitting the first respondent to stand for election on two leaves symbol affected materially the result of the election. The petitioner submits that the four left hand thumb impressions on Form-A and one left hand thumb impression on Form-B of late Ms.Jayalalitha, General Secretary of AIADMK party are entirely different to each other, since the thumb impressions of then General Secretary of AIADMK party are varying to each other on seeing naked eyes. The same has to be verified as to corroborate the endorsement versions made by Dr.P.Balaji, M.S., Phd., from Madras http://www.judis.nic.in 115 Medical College & Rajiv Gandhi Government General Hospital, Chennai by the first respondent and RO. The genuineness of these LTI of the then General Secretary of AIADMK are not proved by the first respondent.
75. Further, the first respondent/returned candidate in the counter statement submits that the affixture of facsimile signature or signature by means of rubber stamp etc of such office bearer or authorised person are prohibited. The order does not prohibit the affixture of the thumb impression. The General Secretary of the AIADMK party underwent Tracheotomy and had an inflamed right hand and was unable to affix her signature in the Forms, representation was made to the Election Commission/Chief Electoral Officer to permit her to affix her thumb impression in the Forms. The letter dated 27.10.2016 addressed to the Chief Electoral Officer, Tamil Nadu is in the form of guidelines and there is no need for any exemption over Clause 13 of the Symbol Order. Further, the petitioner being a practicing Doctor, while a patient was maintained through ventilation by tracheotomy, the patient cannot be acting in full awareness nor in fair consciousness as well cannot speak nor talk due to the cut of tracheotomy are his opinion and that would not lead to the conclusion http://www.judis.nic.in 116 that the signatory was not conscious at the time of affixing the Forms.
76. As far as the attestation is concerned the learned counsel for the election petitioner would submit that the Medical Officer did not obtained Ms. J.Jayalalitha's thumb impressions in his presence, hence it is not attestation legally. The relevant portion of deposition the Medical Officer, where he spilled beans as he was not at all present to attest the thumb impressions of Ms.J.Jayalalitha in Forms A & B. Q : What was the time you had attested the thumb impression of Ms. J.Jayalalitha?
A : At around 6.30 pm on 27.10.2016, I attested. (it is to be noted that he did not depose he obtained her thumb impressions more than 20 place in all Forms.) Q : When did you get Ex.X.2?
A : On 27.10.2016, at around 6.00pm, I was shown this letter by the Doctor treating Ms. J.Jayalalitha inside the ICU.
Q : The numbers '16/28' and '27/28' in Forms A & B indicate that you would have made endorsement in 28 places, is it not?
A : There are two extra A Forms thumb impressions were obtained and which I attested.
http://www.judis.nic.in 117 Q : you said that in two extra A Forms thumb impressions were obtained and you had attested them. Who obtained and what happened to those extra Forms?
A : When I went inside for attestation, those forms were there, but I do not know who obtained and what happened to those Forms.
Q : Is it correct to state that in your endorsement made in Ex.Xs.7 & 17 you have not mentioned that you have read over the contents of the said Forms to Ms.J.Jayalalitha and the same was understood by her? A : I did not write so in my endorsement.
Q : Mr. Babu Abraham who signed as witness in the Forms A & B has not stated that you have attested in his presence?
A : I have attested the thumb impressions in his presence. Q : Do you have any documentary proof like video, audio, still photo or any written record from Apollo Hospitals to show that you were present at the time of taking thumb impression of Ms.J.Jayalalitha?
http://www.judis.nic.in 118 A : I do not have any such record.
Q : Do you have any proof like video, still photo or any other written record for having visited MDCC unit of Apollo Hospitals where Ms.J.Jayalalitha was admitted on that day?
A : I do not have.
Q : Do you have any proof like video, still photo or any other written record to show that you had attested the thumb impression of Ms. J. Jayalalitha in her presence? A : I do not have.
Q : Out of two letters written by the election commission of India to CEO or TN and to the CEO of Pudhuchery?
A : I was shown two letters i.e., letter written by the Election Commission to the Chief election Officer, Tamil Nadu, and another letter written by the Chief election Officer, Tamil Nadu, to the Returning Officers. Q : Is it correct to state that you have not given any update with regard to the attestation in writing?
A : I have not informed anything in writing in this regard to the Government.
http://www.judis.nic.in 119 Q : Was Ex. X. 22 the letter written by the Chief election Officer, Tamil Nadu, to all Returning Officers read by you to Ms. J.Jayalalitha?
A : Yes.
77. The Ex.X10 marked by Chief election Officer, Tamil Nadu, which is mail receipt of Ex.X2 from Principal Secretary, Election Commission which was sent at 6.20pm on 27.10.2016. Ex.X11 is acknowledgment of Ex.X2 by the AIADMK party head quarters' office assistant 7.50pm on 27.102.16, whereas the timings of said documents were much later than the MO said to have read the Ex.X2 to Ms. J. Jayalalaitha. Likewise, the MO deposed he read Ex.X22 to her. The said document was confidential internal official letter between District Election Officers and Returning Officers only not for any person that too no political person. Ex.X22 was sent by mail by Chief election Officer, Tamil Nadu, to the District Election Officers at 7.08 pm on 27.10.2016. But the MO claimed that he received the same at 6.00 pm and read the same to her. Therefore, it is impossible to read the said Ex.X2 prior to issue to Chief election Officer, Tamil Nadu, or AIADMK party. Ex.X22 was also much later issued than the MO said to have read it to her. Therefore, this would prove the MO was http://www.judis.nic.in 120 not present to obtain any thumb impressions from Ms.J.Jayalalitha.
78. In another instance, the PW7 deposed that he did not Know who obtained thumb impression of Ms. J.Jayalalitha and those forms were there and he attested the same. Therefore, the thumb impressions were affixed in his absence, as per section 3 of the Transfer of Property Act, his attestation is not valid in the eye of the law.
79. During the trial, the returned candidate had not let in any evidence on his side. Even he has not chosen to cross examine the Dr.P.Balaji. The petitioner has proved that the thumb impression of Ms.J.Jayalalitha was doubtful and this Hon'ble Court ordered suo- motto to bring the original thumb impression of late Ms.J.Jayalalaitha from Prappana Agrahara Central Jail, Bengaluru, Karnataka to verify her thumb impressions of Forms A & B of returned candidate. However, he was very hurry enough to approach the Hon'ble Supreme Court to challenge this Hon'ble Court's order of bringing Ms. J.Jayalalitha's original thumb impression from Prappana Agrahara Central Jail, Bengaluru, Karnataka to verify her thumb impressions of Forms A & B of returned candidate. It is sufficient to establish that http://www.judis.nic.in 121 having the returned candidate and his party understood as the cat may be out of bag with regard to the suspicious thumb impressions of Ms. J.Jayalalaitha in Forms A & B.
80. In this regard, except the evidence of PW7 no other witnesses have stated that they have seen Selvi.J.Jayalalitha which creates doubt in the mind of the Court. Even otherwise, PW7/Dr.P.Balaji has not mentioned anything in Forms A and B while attesting the left thumb impression of Selvi.J.Jayalalitha she was in conscious stated of mind. Therefore, as to whether Dr.P.Balaji was allowed to see Selvi.J.Jayalalitha and whether she affixed her left thumb impressions in the presence of Dr.P.Balaji and Dr.P.Balaji attested the thumb impression of Selvi.J.Jayalalitha itself creates serious doubt in the mind of the Court. Admittedly, the first respondent has not examined any witnesses and proved the same. Even the first respondent has not stated in the counter statement that he has seen Selvi.J.Jayalalitha, in the Apollo Hospitals. He has stated that one Dr.Babu K.Abraham of Apollo Hospital witnessed the attestation of Dr.P.Balaji. But he was not examined by the first respondent and proved that Selvi.J.Jayalalitha was oriented and was in conscious state of mind at the time of affixing her thumb impressions. http://www.judis.nic.in 122 The Election Commission also not specified any officer as contemplated under the Election conduct Rules and Hand Book for returning officer that the officer belonging to an Administrative Service not below the rank of the Sub Divisional Officer in whose presence such left thumb impression may be placed, which also creates doubt in the mind of this Court. Viewing from any angle, the first respondent has not proved that Selvi.J.Jayalalitha affixed her left thumb impression with the understanding of the contentions of the Forms and the names of the candidates approved by the party. Neither, the Doctor who gave the treatment was examined nor returned candidate was examined and Dr.P.Balaji has not made any endorsement to that effect. Hence, this issue is answered against the returned candidate/first respondent.
Issue No.9
81. In this regard, the election petitioner has stated in his election petition that the returned candidate have spent crores of rupees on contesting this by-election. The returned candidate deployed several party workers to disburse money to each voter of the constituency during election period. Particularly on 17.11.2016 and 18.11.2016 the returned candidate and his men freely disbursed Rs.1,000/- to every voters by using government machineries, election http://www.judis.nic.in 123 officials including RO and entire police force. Being not satisfied with the voters, on the date of election an additional sum of Rs.1,000/- was disbursed to the voters by way of issuing tokens. After polling date, the returned candidate and his men were disbursing the additional sum after verifying the voters whether they cast their votes. The petitioner's party men complaints to the local police and caught hold of them with money and took them to police station to book FIR. The returned candidate disbursed crores of rupees to voters and win over a margin of 42,670 votes. In the General Election 2016, the AIADMK party candidate won by margin of 22,991 votes. Hence, it is clearly proved that due to mass corrupt practice committed by the returned candidate and disbursement of money to voters directly and materially affected the result of the election.
82. The first respondent/returned candidate in his counter has stated that spending crores of rupees for contesting the by-election is false and the petitioner is called upon to prove the same. Further, the Government machineries, election officials, RO and police force are used for disbursing money to the voters are raised only for the purpose of filing this petition. The first respondent has got a very good reputation among the general public and therefore he was able to http://www.judis.nic.in 124 secure more votes than his predecessors. Mere securing more votes than the predecessors does not amount to that the first respondent paid money to the voters. The first respondent was the MLA of the very same constituency during the period 2006-2011 and the MLA of Madurai North Constituency during 2011-2016 having good reputation among the people in the constituency.
83. There is no evidence to prove that the returned candidate had disbursed money to the voters. There is no recovery of money and no material evidence except the evidence of PW1 no other witnesses have spoken about distribution of money during by-election. Mere registering FIR is not a proof for corrupt practice. The election petitioner has not examined any person those who have received money or any voters or who have seen the disbursement of money for vote. The petitioner has not proved the allegation that the returned candidate had disbursed money to the voters in the manner known to law. Hence this issue is answered against the election petitioner.
Issue No.10
84. The Election Commission should have advised the AIADMK party to authorise any one of the Office Bearer or advised the AIADMK http://www.judis.nic.in 125 party to get authorisation from the General Secretary Selvi.J.Jayalalitha to sign the Forms A and B. If at all Selvi.J.Jayalalitha alone was authorised by the party they should have got authorisation from Selvi.J.Jayalalitha instead the Election Commission to give clarification for the word sign advised to attest the left thumb impression of Selvi.J.Jayalalitha. When election laws recognise only sign in INK only. Even assuming that as per the clarification given by the Election Commission they interpreting the word sign and she was permitted to affix her left thumb impression, still the Election Commission should have specified any one of the officer not below the rank of a Sub Divisional Officer for attesting the left thumb impression of Selvi.J.Jayalalitha in the presence of the either duty Doctor or Government Doctor to confirm the conscious state of mind. But, the Election Commission has not applied its mind and give effect to mandate of the statutory provisions and also the law laid down by the Hon'ble Supreme Court in this regard.
85. The Hon'ble Supreme Court in the case of Commissioner of income tax, Mumbai V. Anjum MH Ghaswala and others reported in 2002 (1) SCC 633 held that it is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a http://www.judis.nic.in 126 particular manner then the said authority has to exercise it only in the manner provided in the statute itself. Therefore, unless a particular statute expressly or by necessary implication or internment excludes the common law rule the letter must prevail. On reading of the relevant provisions supra the intention of the legislature is not to exclude the common law rule. Because para 13(c) of Symbols Order says that --
“13.(c) the said notice in Form B is signed by the President, the Secretary or any other office bearer of the party, and the President, Secretary or such other office bearer sending the notice has been authorised by the party to send such notice”.
Since, the alternative choices are available that any one of the person mentioned in the para 13(c) of symbols order clause can sign the Forms A & B in INK only.
86. Further, Section 2 and 2(a) of the Conduct of Election Rules, 1961 reads as follows :-
(2) For the purposes of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed http://www.judis.nic.in 127 to have signed an instrument or other paper if-
(a) he has placed a mark on such instrument or other paper in the presence of the Returning Officer or the Presiding Officer or such other Officer as may be specified in this behalf by the Election Commission.
87. Clause 19.1.1 of Handbook for Returning Officer is extracted hereunder :-
“19.1.1 Sub Rule (2) (c) of the Rule 2 of the Conduct of Elections Rule, 1961 lays down that a person who is unable to write his name shall be deemed to have signed on instrument or a paper if he has placed a mark on such instrument or other paper in the presence of Returning Officer or the Presiding Officer or such other officer as may be specified in this behalf by the Election Commission. The Commission has accordingly, specified every officer belonging to an administrative service not below the rank of a Sub-Divisional Officer as an officer in whose presence such mark may be placed.” http://www.judis.nic.in 128
88. Even though the Presidium Chairman of AIADMK party E.Madhusudhanan, addressed Ex.X3 letter dated 26.10.2016 to the Election Commissioner of India the Chief Electoral Officer, Tamil Nadu without applying his mind simply recommended to the Election Commission of India though Ex.X4. Even before that he sent letter for clarification under Ex.X1 ignoring the relevant provisions of election laws and law laid down by the Hon'ble Supreme Court. The Election Commission of India also without giving effect to statutory provisions and instructions given to Returning Officer in the Hand Book accepted the demand made by AIADMK party. At the relevant point of time, the AIADMK party was ruling party, unfortunately, the ruling party was also not ready to give effect to the statutory provisions. The Chief Electoral Officer, Tamil Nadu in order to satisfy the ruling party simply acted only as mouth peace of ruling party, he has forgotten that he is under the control of constitutional authority viz., Election Commission of India. The Returning Officer failed to follow the instructions given in the Hand Book for Returning Officer and accepted improper nomination of Returning candidate knowing fully well which would materially affect the result of the Election. The Principal Secretary/PW6, Chief Electoral http://www.judis.nic.in 129 Officer, Tamil Nadu/PW3 have played fraud with connivance of AIADMK party, hence, permitting the returned candidate to file his nomination along with thumb impressions in Forms A and B and misguided the Returning Officer by issuing Ex.X2 and influenced her to accept the improper and invalid nomination.
89. It was held in the recent decision of the Hon'ble Supreme Court in the case of Mairembam Prithiviraj v. Pukhrem Sharatchandra Singh reported in 2017 (2) SCC 487, the relevant paragraphs 22 to 26 are reproduced hereunder :-
22. The facts, in brief, of Durai Muthuswami [Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] are that the petitioner in the election petition contested in the election to the Tamil Nadu Legislative Assembly from Sankarapuram constituency. He challenged the election of the first respondent on the grounds of improper acceptance of nomination of the returned candidate, rejection of 101 postal ballot papers, ineligible persons permitted to vote, voting in the name of dead persons and double voting. The High Court dismissed the election petition by holding that the petitioner failed to allege and http://www.judis.nic.in 130 prove that the result of the election was materially affected by the improper acceptance of the nomination of the first respondent as required by Section 100(1)(d) of the Act.
The civil appeal filed by the petitioner therein was allowed by this Court in Durai Muthuswami [Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] in which it was held as follows:
“3. Before dealing with the question whether the learned Judge was right in holding that he could not go into the question whether the 1st respondent's nomination has been improperly accepted because there was no allegation in the election petition that the election had been materially affected as a result of such improper acceptance, we may look into the relevant provisions of law. Under Section 81 of the Representation of the People Act, 1951 an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101. It is not necessary to refer to the rest of the section. Under Section 83(1)(a), insofar http://www.judis.nic.in 131 as it is necessary for the purpose of this case, an election petition shall contain a concise statement of the material facts on which the petitioner relies. Under Section 100(1) if the High Court is of opinion —
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act….
(b)-(c)***
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected—
(i) by the improper acceptance of any nomination, or
(ii)-(iii)*** the High Court shall declare the election of the returned candidate to be void. Therefore, what Section 100 requires is that the High Court before it declares the election of a returned candidate is void should be of opinion that the result of the election http://www.judis.nic.in 132 insofar as it concerns a returned candidate has been materially affected by the improper acceptance of any nomination. Under Section 83 all that was necessary was a concise statement of the material facts on which the petitioner relies. That the appellant in this case has done. He has also stated that the election is void because of the improper acceptance of the 1st respondent's nomination and the facts given showed that the 1st respondent was suffering from a disqualification which will fall under Section 9-A. That was why it was called improper acceptance. We do not consider that in the circumstances of this case it was necessary for the petitioner to have also further alleged that the result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of the 1st respondent's nomination. That is the obvious conclusion to be drawn from the circumstances of this case. There was only one seat to be filled and there were only two contesting candidates. If the allegation that the http://www.judis.nic.in 133 1st respondent's nomination has been improperly accepted is accepted the conclusion that would follow is that the appellant would have been elected as he was the only candidate validly nominated. There can be, therefore, no dispute that the result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination because but for such improper acceptance he would not have been able to stand for the election or be declared to be elected.
The petitioner had also alleged that the election was void because of the improper acceptance of the 1st respondent's nomination. In the case of election to a single-member constituency if there are more than two candidates and the nomination of one of the defeated candidates had been improperly accepted the question might arise as to whether the result of the election of the returned candidate had been materially affected by such improper reception. In such a case the question would arise as to what would have happened to the votes which had been http://www.judis.nic.in 134 cast in favour of the defeated candidate whose nomination had been improperly accepted if it had not been accepted. In that case it would be necessary for the person challenging the election not merely to allege but also to prove that the result of the election had been materially affected by the improper acceptance of the nomination of the other defeated candidate. Unless he succeeds in proving that if the votes cast in favour of the candidate whose nomination had been improperly accepted would have gone in the petitioner's favour and he would have got a majority he cannot succeed in his election petition. Section 100(1)(d)(i) deals with such a contingency. It is not intended to provide a convenient technical plea in a case like this where there can be no dispute at all about the election being materially affected by the acceptance of the improper nomination. “Materially affected” is not a formula that has got to be specified but it is an essential requirement that is contemplated in this section. Law does not contemplate a mere repetition http://www.judis.nic.in 135 of a formula. The learned Judge has failed to notice the distinction between a ground on which an election can be declared to be void and the allegations that are necessary in an election petition in respect of such a ground. The petitioner had stated the ground on which the 1st respondent's election should be declared to be void. He had also given the material facts as required under Section 83(1)(a). We are, therefore, of opinion that the learned Judge erred in holding that it was not competent for him to go into the question whether the 1st respondent's nomination had been improperly accepted.” (emphasis supplied)
23. It is clear from the above judgment in Durai Muthuswami [Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] that there is a difference between the improper acceptance of a nomination of a returned candidate and the improper acceptance of nomination of any other candidate. There is also a difference between cases where http://www.judis.nic.in 136 there are only two candidates in the fray and a situation where there are more than two candidates contesting the election. If the nomination of a candidate other than the returned candidate is found to have been improperly accepted, it is essential that the election petitioner has to plead and prove that the votes polled in favour of such candidate would have been polled in his favour. On the other hand, if the improper acceptance of nomination is of the returned candidate, there is no necessity of proof that the election has been materially affected as the returned candidate would not have been able to contest the election if his nomination was not accepted. It is not necessary for the respondent to prove that result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination as there were only two candidates contesting the election and if the appellant's nomination is declared to have been improperly accepted, his election would have to be set aside without any further enquiry and the only candidate left in the fray is entitled to be declared elected. http://www.judis.nic.in 137
24. The judgment of this Court in Durai Muthuswami [Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] was referred to in Jagjit Singh v. Dharam Pal Singh[Jagjit Singh v. Dharam Pal Singh, 1995 Supp (1) SCC 422] , in which it was held as follows: (Jagjit Singh case [Jagjit Singh v. Dharam Pal Singh, 1995 Supp (1) SCC 422] “21. The trial Judge has held that since there is no averment in the petition that the result of the election was materially affected by improper rejection or acceptance of votes, it is devoid of cause of action. We are unable to agree that the absence of such an averment in the facts of this case is fatal. As pointed out by this Court, there may be cases where the obvious conclusion to be drawn from the circumstances is that the result of the election has been materially affected and that Section 100(1)(d) of the Act is not intended to provide a convenient technical plea in a case where there can be no dispute at all about the result of the election being http://www.judis.nic.in 138 materially affected by the alleged infirmity. (See: Durai Muthuswami v. N. Nachiappan [Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] .) In the present case, the appellant in the election petition has stated that he has lost by a margin of 80 votes only. From the various averments in the election petition it was evident that the number of valid votes of the appellant which are alleged to have been improperly rejected is much more than 80. From the averments contained in the election petition it is thus obvious if the appellant succeeds in establishing his case as set out in the election petition the result of this election, insofar as it concerns the returned candidate, would be materially affected.”
25. It was held by this Court in Vashist Narain Sharma v. Dev Chandra [Vashist Narain Sharma v. Dev Chandra, (1955) 1 SCR 509 : AIR 1954 SC 513] as under:
“9. The learned counsel for the respondents
concedes that the burden of proving that the
http://www.judis.nic.in
139
improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of three ways:
(1) where the candidate whose nomination was improperly accepted had secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes, (2) where the person referred to above secured more votes, and (3) where the person whose nomination has been improperly accepted is the returned candidate himself.
It is agreed that in the first case the result of the election is not materially affected because if all the wasted votes are added to the votes of the candidate securing the highest votes, it will make no difference to the result and the returned candidate will retain the seat. In the other two cases it is contended that the result is materially affected. So far as the third case is concerned it may be readily conceded that http://www.judis.nic.in 140 such would be the conclusion. But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in http://www.judis.nic.in 141 his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.” (emphasis supplied) This Court in Kisan Shankar Kathore v. Arun Dattatray Sawant [Kisan Shankar Kathore v. Arun Dattatray Sawant, (2014) 14 SCC 162] dealt with a situation similar to that of this case. In that case, the election of the returned candidate was successfully challenged on the ground of non-disclosure of material information. The appeal filed by the returned candidate was dismissed by this Court by observing as follows:
“43. … Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void.” http://www.judis.nic.in 142
26. Mere finding that there has been an improper acceptance of the nomination is not sufficient for a declaration that the election is void under Section 100(1)(d). There has to be further pleading and proof that the result of the election of the returned candidate was materially affected. But, there would be no necessity of any proof in the event of the nomination of a returned candidate being declared as having been improperly accepted, especially in a case where there are only two candidates in the fray. If the returned candidate's nomination is declared to have been improperly accepted it would mean that he could not have contested the election and that the result of the election of the returned candidate was materially affected need not be proved further. We do not find substance in the submission of Mr Giri that the judgment in Durai Muthuswami [Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] is not applicable to the facts of this case. The submission that Durai Muthuswami[Durai Muthuswami v. N. http://www.judis.nic.in 143 Nachiappan, (1973) 2 SCC 45] is a case of disqualification under Section 9-A of the Act and, so, it is not applicable to the facts of this case is also not correct. As stated supra, the election petition in that case was rejected on the ground of non-compliance with Section 100(1)(d). The said judgment squarely applies to this case on all fours. We also do not find force in the submission that the Act has to be strictly construed and that the election cannot be declared to be void under Section 100(1)(d) without pleading and proof that the result of the election was materially affected. There is no requirement to prove that the result of the election of the returned candidate is materially affected once his nomination is declared to have been improperly accepted.”
90. In this case, the Chief Electoral Officer, Tamil Nadu acted in favour of the ruling party and recommended even without seeing any medical records based on the press report alone without ascertaining actual condition of Selvi.J.Jayalalitha neither through Apollo Hospital authority nor through Doctors who gave treatment to her. Even, Ex.X3 has not been enclosed with medical certificate issued by the http://www.judis.nic.in 144 Doctors who gave treatment or supported with any medical records. Both PW3/Chief Electoral Officer, Tamil Nadu and PW6/Senior Principal Secretary, Election Commission of India have admitted before this Court during the examination that no medical certificates have been produced and they have not seen any medical records and they acted only based on Ex.X3 letter given by Mr.Madhusudanan, Presidium Chairman, AIADMK Party. Hence, this Court finds that the Forms A and B submitted by returned candidate is not in consonance with the provisions of Election Laws supra and his nomination is declared as improper. Therefore, there is no requirement to prove that the result of the election of the returned candidate is materially affected once his nomination is declared to have been improperly accepted. Hence, this issue is answered in favour of the election petitioner.
91. In the light of the above discussions in the aforesaid Issues, the Election of the first respondent as returned candidate on 22.11.2016 from No.195, Thiruparankundram Assembly Constituency is hereby declared as null and void.
92. Insofar as the Original Application in OA.No.955 of 2018 is concerned, since the election for No.195, Thiruparankundram http://www.judis.nic.in 145 Assembly constituency is declared as null and void on the ground of defective nomination of the returned candidate, but not on the ground of corruptive practice. This Court cannot say that when more than one person is contesting in the election, if the returned candidate's nomination is rejected, all the voters will cast their votes only to the election petitioner. Thereby, the applicant/election petitioner cannot be declared as winning/returned candidate. Hence, the relief sought for in this application is dismissed.
93. In the result, the Election Petition is allowed. However, there is no order as to costs.
22.03.2019 Index : Yes/No Internet : Yes/No tsh List of Witness examined on the side of the Petitioner
1. Dr.P.Saravanan, Election petitioner - PW1
2. Thangeswarn, Chief Agent of Election petitioner - PW2
3. Rajesh Lakhani, Chief Electoral Officer, State of Tamil Nadu - PW3
4. K.Veera Raghava Rao, District Collector/ District Election Officer, Madurai - PW4
5. R.Jeeva, Returning Officer - PW5
6. K.F.Wilfred, Senior Principal Secretary, Election http://www.judis.nic.in 146 Commission of India, New Delhi - PW6
7. Dr.P.Balaji, Professor of Minimal Access Surgery, and also Member Secretary, TRANSTAN, Chennai - PW7
8. K.S.Gopalakrishnan - PW8 List of documents marked on the side of the Petitioner SL. Exhibits DESCRIPTION OF DOCUMENTS DATED No
1. P1 Press release of ECI regarding by-elections 17.10.2016
2. P2 Form A of the Returned Candidate 27.10.2016
3. P3 Form B of the Returned Candidate 27.10.2016
4. P4 ECI letter permitting Ms.J.Jayalalitha to affix 27.10.2016 thumb impression on Form A & B
5. P5 Petitioner's objection during scrutiny process 03.11.2016
6. P6 Endorsement portion of Dr.Balaji in Form-B 27.10.2016
7. P7 Petitioner's representation to DEO to issue order 09.11.2016 by RO
8. P8 RTI application to RO 04.11.2017
9. P9 RTI application to CEO 04.11.2017
10. P10 RTI application to DEO 04.11.2017 11 P11 Representation of Chief Agent of Election 16.11.2017 Petitioner regarding shifting RO Office.
12 P12 Order of RO accepting Returned candidate's 09.11.2017 nomination 13 P13 RTI application of petitioner to ECI and response 15.02.2017 of ECI along with note files 14 P14 Result sheet of Thiruparankundram by-election 19.11.2017 2016 15 P15 FIR against Madurai District Court Government 12.11.2016 Pleader (AIADMK) for election offence http://www.judis.nic.in 147 List of Witness examined on the side of the respondents Nil List of documents marked on the side of the respondents Nil List of documents marked by the Court during the examination of the witnesses.
SL. Exhibits DESCRIPTION OF DOCUMENTS DATED No CEO of TN requesting ECI to clarify symbol 1 X1 24.10.2016 Order ECI letter permitting Ms.J.Jayalalitha to affix 2 X2 27.10.2016 thumb impression on Form A & B AIADMK party Chairman Madhusudanan's representation to CEO requesting to authorise 3 X3 26.10.2016 duty Doctor to obtain thumb impression of Jayalalitha in Forms A and B CEO's recommendation letter to ECI for 4 X4 26.10.2016 AIADMK party request Complaint of election petitioner regarding 5 X5 03.11.2016 Scrutiny process CEO's covering letter for forwarding election 6 X6 04.11.2016 petitioner's complaint to ECI 7 X7 Form A of the returned candidate 27.10.2016 Chief Agent of election petitioner's complaint to 8 X8 16.11.2016 CEO,TN regarding shifting of RO office 9 X9 Instructions issued by CEO for “Mock Poll” 25.10.2009 10 X10 Copy of Email of Ex.X2 received by CEO from 27.10.2016 http://www.judis.nic.in 148 ECI with time of receipt 11 CEO's covering letter for serving Ex.X2 to X11 AIADMK Party and acknowledged of AIADMK 27.10.2016 party head quarters 12 CEO's email print out of sending email with X12 attchment of Ex.X2 and his covering letter to 27.10.2016 DEOs and ROs and postal receipts of the same 13 Report of the DEO regarding the complaint for X13 shifting RO office 19.11.2016 CEO's covering letter by email to DEOs and ROs 14 X14 27.10.2016 forwarding Ex.X2 Form-1 for Notice of Election by which fixing 15 X15 26.10.2016 office of RO for the by-election Original Nomination papers of Returned 16 X16 28.10.2016 candidate 17 X17 Form B of the Returned Candidate 27.10.2016 18 X18 VCD of scrutiny process 03.11.2016 Objection complaint with annexure given by 19 X19 Election petitoner to reject nomination of 03.11.2016 Mr.Bose to RO at the time of Scrutiny Objection complaint given by Mr.Murugaiya 20 X20 independent candidate to reject nomination of 03.11.2016 MR.Bose to RO at the time of scrutiny Order of RO accepting nomination of Mr.Bose 21 X21 against the complaint of the electiion petitioner 05.11.2016 dated 03.11.2016 Copy of Email sent by CEO to DEOs and ROs conveying to follow the instruction of CEI as per 22 X22 27.10.2016 Ex.X2 23 X23 Mock Poll certificates 19.11.2016 Copy of CEO's covering letter forwarding 24 X24 26.10.2016 AIADMK party letter to ECI and its mail receipt ECI instruction regarding thumb impression of 25 X25 27.10.2016 Ms.J.Jayalalitha in Form A & B and mail receipt 26 X26 Covering letter of CEO marked copy to Principal 04.11.2016 Secretary Mr.Wilfred forwarding to ECI regarding objection complaints sent by election petitioner http://www.judis.nic.in 149 and other candidates to CEO, TN about the nomination of the returned candidate.
27 X27 Letter of Health Secretary of TN authorizing 23.09.2016 Dr.Balaji to coordinate and liaison with treating Doctors of Ms.J.Jayalalitha Government Order issued by Health Secretary appointing team of Doctors to station at Apollo 28 X28 Hospitals to Coordinate with treating Doctors 30.09.2016 and update regularly about the status of Ms.J.Jayalalitha GO.Ms.No.163 Health and Family Welfare 29 X29 05.05.2017 Department 22.03.2019.
(P.V.J.) http://www.judis.nic.in 150 P.VELMURUGAN, J.
tsh ` Pre-Delivery Judgment in ELP.No.2 of 2017 and OA.No.955 of 2018 http://www.judis.nic.in 151 22.03.2019.
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