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3. The averments in the Election Petition are that EVM from Polling Station No.13, Chinnapallikuppam was counted in Round No.2 in Table No.1. The said EVM was verified and found that it was pertaining to Polling Station No.13, Chinnapallikuppam. The seals were removed, but when the button was pressed, there was some problem. One Ms.Geetha, technician was sent for and she came and verified and told that by mishandling of EVM, the result got erased. The said EVM for No.13, Chinnapallikuppam was counted in Round No.2 in Table No.1 showed against each candidate " 0  0  0" as the result. The result was also written in the black board which was noted by the Petitioner's counting agent Mr.Parthasarathy [PW4]. Petitioner gave objection to the Election Observer at 12.10 P.M. on 11.05.2006 seeking re-polling. According to Petitioner, everyone reconciled to the position that there will be re-polling in Polling Station No.13, Chinnapallikuppam and hence, the Petitioner and her Chief Election Agent and also the Counting Agents rushed to Chinnapallikuppam which was 35 to 40 km away from the place of counting.

30. In her evidence, PW1 has stated that on 11.5.2006 votes polled in No.8, Gururajapalayam were counted in Table No.10 in the presence of PW3-Prahalathan [Counting Agent of Election Petitioner] and that PW1 secured 377 votes and 1st Respondent secured 391 votes. P.W.1 has further stated that EVM pertaining to Polling Station No.9, Gururajapalayam was counted in Table No.11 in Round No.1. PW1 secured 155 votes and 1st Respondent secured 278 votes. In her evidence PW1 has further stated that at 8.30 A.M. the votes polled in Polling Station Nos.11 and 12 of Chinnapallikuppam were brought to the counting table and votes were counted. Thereafter, the votes polled in No.13, Chinnapallikuppam was brought to the counting Table in Round No.2 and PW4-Parthasarathy was her counting agent. She has further stated that the total number of votes polled mentioned on the cover of EVM was 667 and that when the EVM was opened and polled votes were counted, it was found only "000" as against each candidate in the EVM. PW1 has further stated that the officials called for one Geetha who is said to be a technician of EVM and the said Geetha checked the EVM and she has reported that EVM was not handled properly and all the votes polled therein got erased. According to the Election Petitioner, the result of Polling Station No.13, Chinnapallikuppam was written on the black board as "000" and therefore, P.W.4-Parthasarathy left blank as against Polling Station No.13, Chinnapallikuppam in Ex.P1 [Note Book]. PW1 has further stated that EVM of No.13, Chinnapallikuppam was kept aside and other EVMs were counted and the counting process was completed at about 12.30 noon and she gave representation [Ex.P2], requesting for conducting re-polling in Polling Station No.13, Chinnapallikuppam. PW1 has also stated that the result was not declared at 12.30 noon and that since the District Election Officer announced re-polling can be held at Chinnapallikuppam, she along with her Chief Election Agent [PW2-N.T.Shanmugam] went to Chinnapallikuppam which is at a distance of 40 kms away from the counting place. PW1 has also stated that on the same day evening at about 5.30 P.M., the District Election Officer called her and her Chief Election Agent [PW2] and asked them to come to the counting place and when she and her Chief Election Agent came back to the counting place at about 7.00 P.M., she saw 1st Respondent was present with the District Election Officer in the counting hall itself. PW1 has further stated that the District Election Officer told them that counting of votes in No.13, Chinnapallikuppam was already over in the morning and that only the votes counted in Polling Station No.8, Gururajapalayam was not counted and that the EVM pertaining to No.8, Gururajapalayam was kept in the adjacent room and the District Election Officer asked all of them to come forward for counting of votes of No.8, Gururajapalayam and the Election Petitioner raised objection for counting of votes polled in Polling Station No.8, Gururajapalayam stating that counting for that Polling Station was already over in the morning. PW1 has further stated that they did not go to the adjacent room to bring the EVM pertaining to No.8, Gururajapalayam and she does not know whether the votes polled for Polling Station No.8, Gururajapalayam was counted or not and that next day morning she came to know from the newspaper that 1st Respondent was declared elected for No.47, Anaicut Assembly Constituency by a margin of "53" votes.

33. Reiterating the version of PW1, PW2 has also stated that Election Petitioner has submitted a representation to the Election Observer requesting for re-poll in Polling Station No.13, Chinnapallikuppam and on coming to know about the problem, the District Election Officer came to the counting hall and stated that due to problem in the EVM pertaining to No.13, Chinnapallikuppam, re-poll has to be conducted and since re-poll was intended to be conducted, Election Petitioner, PW2 and their party men left for Chinnapallikuppam. PW2 has also stated that when they reached Chinnapallikuppam at about 5.30 P.M., the District Election officer called him over his cell phone and asked to come to the counting place at Thanthai Periyar Polytechnic, Vellore and when they reached the counting place, the 1st Respondent and District Election Officer were present. PW2 would further state that the District Election Officer told that the votes polled in No.13, Chinnapallikuppam were already been counted in the morning itself and that the votes polled in No.8, Gururajapalayam are to be counted and he further told that the EVM pertaining to No.8, Gururajapalayam is in the additional strong room and the same has to be brought for counting. PW2 would further state that they did not agree and objected for the same and submitted a representation forwarding a copy to the Election Commission, New Delhi and that they did not go to the counting hall and came out and on the next day, they saw the newspapers that the result was declared and 1st Respondent was declared elected. In his evidence, PW2 has further stated that as per the Rules, the polled EVMs should be kept in the strong room and only those EVMs have to be taken for counting. Since the EVM was brought from the additional storage room which has no safety measures, it amounts to violation of election rules and the same cannot be taken up for counting. As the votes polled thereon would have been manipulated or tampered with, the votes polled in respect of No.8, Gururajapalayam is not correct.

55. Case of Election Petitioner is that re-polling in No.13, Chinnapallikuppam was ordered and therefore, she and her Chief Election Agent [PW2-N.T.Shanmugam] and their party men went to Chinnapallikuppam for re-polling. PW5-Returning Officer has categorically denied the suggestion that there was lot of discussion about re-polling in No.13, Chinnapallikuppam. Only the Election Commission of India has power to order re-poll. PW5 has categorically stated that even on the date of counting itself, re-polling cannot be ordered because the Electorate have to be informed in advance about the re-polling. When only the Election Commission of India has power to order re-polling, it is highly improbable that PW5-Returning Officer would have contemplated about re-polling in No.13, Chinnapallikuppam. As soon as EVM showed "000", they must have noticed the mistake, since Part-I of Ex.P5 Form 17-C, 667 votes were polled in No.13, Chinnapallikuppam after checking up with Number of Control Unit, interchange of EVM came to light. The contention of Election Petitioner that re-polling of No.13, Chinnapallikuppam was contemplated/declared is not acceptable and Issue No.4 is answered accordingly.