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42. In circumstances of this nature, there are 2 options available namely (i) to countermand the poll in these 2 booths and order re-poll or (ii) to declare the votes polled in these 2 booths as invalid. In normal circumstances, the first option should be taken. But the situation on hand is of extraordinary and grave nature. We have seen ---

(i) that the Nagercoil Bar has repeated what they did with impunity in the previous elections

(ii) that they deliberately violated the code of conduct prescribed both by the rules and by this court

27. In the meantime, the President of the Padmanabhapuram Bar also filed applications for impleading and for recalling the order dated 8-3-2011. Their application for impleading was allowed and the application A.No.1628 of 2011 for recalling the order was also taken up along with the application of the Nagercoil Bar.

A.No.1600 of 2011 (Nagercoil)

28. Mr.V.Selvaraj, learned counsel appearing for the President of the Nagercoil Bar Association, submitted (i) that the plaintiff has no locus standi to maintain the above suit in view of the provisions of Section 20 of the Tamil Nadu Societies Registration Act, 1975; (ii) that since the suit was filed after the issue of the election notification, it was not maintainable; (iii) that since the suit was not instituted as a representative suit under Order I, Rule 8, CPC, any decision rendered in the suit may not bind persons other than those who are parties; (iv) that the question as to whether there was tampering or not, is a matter to be decided only after conclusion of trial; (v) that the votes cast by members of the Bar who unanimously resolved to elect a local candidate so as to voice their grievances, cannot be said to amount to tampering and (vi) that in any case, at least a re-polling ought to have been ordered.

61. While Rules 26 to 31 deal with the procedure for counting, ascertainment of quota, filling up of last vacancies etc., Rule 32 deals with co-option. Rule 34 deals with determination of results and publication thereof. Rule 35 deals with election disputes and Rules 36 to 38 deal with the Constitution and Powers of an Election Tribunal. Rule 40 deals with appeals against the orders of the Election Tribunal, to the Bar Council of India.

62. Interestingly, there is no provision in the entire Rules, enabling the Returning Officer to order re-poll. Even the Election Tribunal constituted under Rule 36(1) is not empowered to order re-poll, though it has a power to order recount. Therefore, it is clear that the Returning Officer is not conferred with the power to order re-poll, though he is conferred with the power (i) to declare a voting paper as defaced under Rule 22(2) or (ii) to invalidate the ballot box or boxes, in terms of Rule 25(2) if in his opinion, they are tampered. There is no provision for the Returning Officer to order re-poll.

63. The power to order fresh polls (or re-polling, as is known in common parlance) in the case of elections to Houses of Parliament and Houses of the Legislatures of States, is traceable to Section 58A of The Representation of The People Act, 1951, which was inserted by the Amendment Act 1 of 1989. As a matter of fact, (1) the power to declare the poll at a particular polling station as void and to order re-poll, traceable to Section 58A (2)(a) and (2) the power to countermand elections in any particular constituency traceable to Section 58A (2)(b), are conferred by the said Act only upon the Election Commission. The power is exercisable only by the Election Commission upon receipt of a report from the Returning Officer under Section 58A(1). Similarly, under Section 64A of the Representation of the People Act, 1951, the Election Commission has the power, on the basis of a report of the Returning Officer to declare the poll at a Polling Station to be void and to order fresh poll.