@JUDGMENTTAG-ORDER
P. Jyothimani, J.@mdashThis election petition is filed by the Petitioner, who was the contestant from No. 156, Thottiyam Assembly Constituency in the election for Tamil Nadu Legislative Assembly held on 8.5.2006 for which the results have been declared on 11.5.2006, against the Respondents 1 to 9, out of whom the first Respondent has been declared to have been successfully elected in the election, to:
(i)declare the election of the Returned candidate, namely the first Respondent herein from No. 156 - Thottiam Assembly Constituency (Tamilnadu) in the election held on 8.5.2006 in which results have been declared on 11.5.2006 as void;
(ii)order scrutiny of all the 396 big covers in Form 13-C containing the postal ballot papers, including the declaration and the small cover in Form 13-B, with 396 postal ballot papers in Forms 13-A, 13-B & 13-C and the serial numbers thereon and the attestation in Form 13-A and order recounting of all 396 postal ballot papers in comparison with the register maintained by the Returning Officer along with Form 12 received for such postal ballot papers;
(iii)declare the Petitioner as duly elected as a member of the Tamil Nadu Legislative Assembly from No. 156 - Thottiam Assembly Constituency (Tamil Nadu) in the election held on 8.5.2006 (n which results have been declared on 11.5.2006); and (iv)to direct the first Respondent to pay the casts of this election petition.
2. The brief facts in a nutshell are as under:
2.1. In the election held on 8.5.2006, admittedly, electronic voting machines were used in the polling stations and both the votes cast through electronic voting machines and postal ballot papers were counted on 11.5.2006 at Arignar Anna Government Arts College, Musiri and the first Respondent has been declared elected by the Returning Officer with a margin of 53 votes.
2.2. Originally, when the election petition was filed, the Returning Officer was arrayed as tenth Respondent and at the instance of the tenth Respondent, his name has been struck off as per the order dated 27.7.2007 in O.A. No. 350 of 2007 in this election petition.
2.3. As per Form 20 issued by the Returning Officer, the Petitioner has polled 43,003 votes, while the first Respondent has polled 42,784 votes through electronic voting machines. It is stated that 296 postal ballot votes were polled in favour of the first Respondent and 24 postal ballot votes were polled in favour of the Petitioner and therefore, by a margin of 53 votes, the first Respondent was declared elected.
2.4. The election petition is filed alleging certain irregularities in respect of the counting of postal ballot votes. According to the Petitioner, as per Rule 54 and 54-A of the Conduct of Election Rules, 1961 (for brevity, "the Rules"), in the process of counting, the Returning Officer shall first deal with the postal ballot papers and thereafter only deal with electronic voting machines. According to him, the procedure contemplated under Rule 54-A(1) to (7) of the Rules was not complied with by the Returning Officer.
2.5. It is his case that, on the date of counting, viz., 11.5.2006, at 8 a.m., the Returning Officer, who was expected to take up the postal ballot papers has not disclosed as to how many postal ballot papers were received and therefore, No. particulars were given. The Returning Officer was busy in bringing the electronic voting machines to the twelve counting tables in the hall and therefore, he failed to perform his statutory duty.
2.6. It is stated that the box containing postal ballot papers was opened and the Assistants of the Returning Officer started opening the big covers containing declaration and small cover containing the postal ballot paper. According to the Petitioner, on opening the big cover, the Returning Officer should have verified the signature in declaration forms which are in Form 13-A with the signature in Form 13-C and as to whether the serial number is correct and inasmuch as the Returning Officer has not verified the same, the procedure contemplated under Rules 54-A(3) and 54-A(4) of the Rules has not been complied with.
2.7. According to the Petitioner, the postal ballot papers should be dealt with only by the Returning Officer, while it was his assistants who have dealt with the same and have not verified the declaration by the voter or the signature of the voter in Form 13-A and Form 13-C, and they have not verified and tallied the serial number of the ballot paper in the declaration in Form 13-A and on the cover of Form 13-B. It is stated that they simply opened the covers and took the ballot papers alone, which, according to the Petitioner, is a gross violation of Rule 54-A of the Rules, which contemplates a mandatory procedure and it materially affects the election of the returned candidate.
2.8. It is stated that the Petitioner and his Election Agents - N.Nedumaran and R.Sekar and Counting Agent - P.Senthil Kumar were present from 7.45 a.m. onwards and according to the Petitioner, at 9.30 a.m., one person came and handed over a bunch of 60 postal ballot papers in Form 13-C in big covers and those big covers did not contain any postal seal and the Returning Officer was a silent spectator and has been receiving the small covers given by his assistants and according to him, the 60 big covers which did not contain the postal seal should not have been counted. He has also stated that the Returning Officer has failed to maintain the register as contemplated under Chapter X and that is gross violation of Rule 54-A(2) of the Rules.
2.9. It is also his case that in respect of about 25 covers containing postal ballot papers there was No. proper signature or declaration and therefore, the Petitioner has objected and sought verification of signature in Form 12, which was not done, and according to the Petitioner, the postal ballot votes in the small cover in Form 13-B should not have been opened in the absence of any signature or improper signature. It is also his case that in respect of other 20 covers containing postal ballot papers, they were opened by the Counting Assistant of Returning Officer and the serial number from the declaration in Form 13-A and the small cover containing postal ballot votes in Form 13-B did not tally, however the small cover containing postal ballot votes were opened and counted in favour of the first Respondent and that is also in violation of Rule 54-A(3) of the Rules and materially affects the election.
2.10. It is his further case that inasmuch as the narrow margin of victory of the first Respondent is 53 votes, the improper reception of 65 postal ballot papers by the Returning Officer is in contravention of Rule 54-A(4) of the Rules and also the receipt of 60 postal ballot papers, stated above, which should not have been counted, vitiates the election of the first Respondent.
2.11. It is stated that the Returning Officer has not announced the results of the postal ballot papers and it was only in the end, after counting was over, while filling Form 20, the Returning Officer has started counting the postal ballot papers and hurriedly filled Form 20 and therefore, according to him, the counting in respect of the postal ballot papers is liable to be rejected. It is stated that the Petitioner and his Election Agent - N.Nedumaran have raised objection and made a protest in respect of the improper procedure.
2.12. It is his case that even today all the 396 covers containing postal ballot papers in Forms 13-A, 13-B and 13-C can be summoned and verified for compliance of the Rules, since as per Rule 54-A(12) of the Rules, the postal ballot papers should have been kept in safe custody and according to the Petitioner, the Returning Officer is bound to produce Form 12 for the purpose of comparing the signature of the voter with that in the declaration in Form 13-A.
2.13. It is stated that he has also sent a representation by telegram on the night of 11.5.2006 to the Returning Officer, Trichy and the Chief Election Officer, Secretariat, Chennai and also by registered post with acknowledgment due on 12.5.2006 to the Election Officer, the Returning Officer and the Election Commission. It is stated that the Petitioner has received the proceedings of the Returning Officer dated 29.5.2006, in which he has referred only to the Petitioner''s letter dated 12.5.2006 and stated to the effect that he has not received any representation at the time of declaration of results, which according to the Petitioner is factually incorrect. Therefore, the present petition has been filed.
3.1. In the counter affidavit filed by the returned candidate, viz., the first Respondent, it is stated that all the allegations made in the election petition are only against the Returning Officer, who was originally arrayed as the tenth Respondent and whose name was struck off as a Respondent, and there is No. allegation of misconduct or corrupt practice against the first Respondent which is mandatory as per Section 83(1) of the Representation of People Act, 1951 (for brevity, "the Act"), which contemplates that in the absence of any corrupt practice having been pleaded and proved against the elected candidate, the election cannot be interfered with.
3.2. It is also stated that even in the application filed by the first Respondent in O.A. No. 946 of 2007 under Order 6 Rule 16 of the CPC to reject the election petition, it was held by this Court on 25.9.2007 that, admittedly, the allegations are against the Returning Officer and not against the returned candidate, but the said application was dismissed and the appeal filed by the first Respondent before the Supreme Court has been permitted to be withdrawn clarifying that it is open to the first Respondent to urge all the points before this Court. Therefore, it is submitted that the election petition is not maintainable since there is No. misconduct or corrupt practice alleged against the first Respondent.
3.3. It is also stated that at No. point of time the Petitioner has raised any objection before the declaration of result before the Returning Officer and therefore, the question of recounting of votes by the Returning Officer, at this stage, does not arise.
3.4. It is admitted that in respect of the election held on 8.5.2006 counting of votes cast through electronic voting machines and postal ballot papers was done on 11.5.2006 at Arignar Anna Government Arts College, Musiri and the first Respondent was declared elected by the Returning Officer, by the first Respondent polling 43080 votes and the Petitioner polling 43027 votes and therefore, there was a margin of 53 votes. It is also admitted that the first Respondent has received 296 postal ballot votes in his favour, while the Petitioner has received only 24 postal ballot votes. It is denied that the Returning Officer did not disclose anything to the Petitioner or to his Election Agent. It is stated that the counting was done strictly in accordance with the procedure contemplated under the Rules, especially Rule 54-A of the Rules.
3.5. It is stated that when counting of votes began at 8 a.m. on 11.5.2006, the postal ballot papers were first counted by the Returning Officer in accordance with the Rules. It is stated that there were totally 396 postal ballot votes received and 23 were rejected as invalid, which has not been referred to by the Petitioner since it has been admitted by both the parties. Since in the postal ballot votes the Petitioner was polled 24 votes and the first Respondent was polled 296 votes, after the polling was completed the same was endorsed in Form 20 and results were declared and the procedure contemplated under the Rules has been duly followed.
3.6. It is also stated that as per Rule 54-A(3) of the Rules, only after verification of the declaration in Form 13-A, the 23 postal ballot votes were declared invalid. It is stated that, after the expiry of time, No. postal ballot papers were received and Rule 54-A(2) of the Rules has been complied with by the Returning Officer. It is stated that the counting of postal ballot votes was completed by 8.20 a.m. itself and therefore, the allegation that postal ballot papers were received up to 9.30 a.m. is false. It is also denied that 60 postal ballot papers were received after 9.30 a.m.. It is also denied that 25 covers containing postal ballot papers were without proper signature and declaration. It is also denied that the Petitioner has raised any objection regarding the said 25 covers. Similarly, the allegation relating to other 40 covers claimed to have been defective is also denied as afterthought and it is stated that none of these objections were raised before the Returning Officer at the time of counting or before declaration of results.
3.7. It is stated that the counting was completed by 3.30 p.m. and declaration was made and before that, at No. point of time, the Petitioner has raised any objection. It is stated that even as per the Petitioner, on 11.5.2006 at 19.16 Hours, which is five hours after the declaration of results, the objections were raised and the same is not maintainable and according to the first Respondent, the election petition is vexatious and liable to be dismissed.
4. On the basis of the pleadings, the following issues were framed on 9.11.2010:
(i)Whether the election petition is maintainable without any allegation of corrupt practice against the returned candidate as mandated u/s 83(1)(b) of the Representation of the People Act?
(ii)Whether the deletion of the tenth Respondent by this Court after being impleaded by the Petitioner will have any bearing on the election petition?
(iii)Whether there is non-compliance of Rules 54-A(4) and 54-A(5) of Conduct of Election Rules, 1961, which has materially affected the result of the Returned candidate?
(iv)Whether there is any violation of Rule 54-A(2) of Conduct of Election Rules, 1961, which has materially affected the result of the Returned candidate?
(v)Whether there is any violation of Rule 54-A(1) to (7) of Conduct of Election Rules, 1961, which has materially affected the result of the Returned candidate?
(vi)Whether the Petitioner is entitled to the relief of scrutiny of all the 396 big covers in Forms 13-A, 13-B and 13-C along with Form 12 received for such 396 Postal Ballot Papers and order recounting of 396 Postal Ballot papers?
(vii)Whether the Petitioner is entitled to the relief of declaration that the election held on 8.5.2006 pertaining to 156, Thottiam Assembly Constituency as void?
(viii)Whether the Petitioner had made valid application for recounting after the completion of counting and before the declaration of results to the returning officer as per Rule 63 of the Conduct of Election Rules, 1961? and
(ix)What relief the Petitioner is entitled to?
5. The Petitioner examined himself as P.W.1, while his Chief Agent - N.Nedumaran was examined as P.W.2 and the Chief Agent of the eighth Respondent - R.Sekar was examined as P.W.3 and nine documents were marked on the side of the Petitioner as Exx.P1 to P9. The Returning Officer was examined as C.W.1 and he has marked his report as Ex.C1.
6. Since a specific issue was raised about the deletion of the Returning Officer, who was originally arrayed as the tenth Respondent in the election petition, it has to be decided as to whether such deletion will have any bearing on the election petition, in the context that the allegations of irregularities in counting the postal ballot papers were levelled against the
Returning Officer. Since the said issue, which has been framed, relates to the maintainability of the election petition, I propose to deal with the Issue (ii) at the outset.
Issue - (ii):
7.1. It is seen that the name of the Returning Officer, who was originally arrayed as tenth Respondent, on his application in O.A. No. 350 of 2007, was struck off as per the order of this Court dated 27.7.2007 and that order has become final. It is true that in O.A. No. 946 of 2007 filed by the first Respondent to dismiss the election petition, this Court while dismissing the application, in the order dated 25.9.2007, has observed that the allegations are only against the Returning Officer and not against the returned candidate.
7.2. It is also equally true that there is nothing on record to show that the application filed by the tenth Respondent to struck off his name has been objected to by the Petitioner. But the question to be considered is whether the non objection of such application filed by the Returning Officer, by the Petitioner in the context that the allegation in respect of counting of postal ballot papers is against the Returning Officer, would be fatal to the election petition.
7.3. Section 82 of the Act, which is as follows:
Section:82. Parties to the petition.- A Petitioner shall join as Respondents to his petition-
(a) where the Petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the Petitioner, and where No. such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.
while narrating about the parties to the petition, only speaks about the contesting parties and therefore, there is No. possibility to construe as per the provision of the said Section that the Returning Officer or the Election Commission should also be made as a party necessary for considering the election petition.
7.4. In Jyothi Basu and Ors. v. Debi Ghosal and Ors. AIR 1982 SC 983, while observing that in a democracy the right to elect is neither a fundamental right nor a Common Law Right, but a pure and simple statutory right and therefore, the election petition being a statutory proceeding to which neither Common Law nor principles of Equity apply, the statutes and rules made there under are only applicable, it was held that even by applying the CPC for amending the petition, the power cannot be exercised for the purpose of striking out a person who is made necessary under the Act. The relevant portion of the said decision is as follows:
11. It is said, the CPC applies to the trial of election petitions and so proper parties whose presence may be necessary in order to enable the court "effectually and completely to adjudicate upon and settle all questions involved" may be joined as Respondents to the petitions. The question is not whether the CPC applies because it undoubtedly does, but only "as far as may be" and subject to the provisions of the Representation of the People Act, 1951 and the Rules made there under. Section 87(1) expressly says so. The question is whether the provisions of the CPC can be invoked to permit that which the Representation of the People Act does not. Quite obviously the provisions of the Code cannot be so invoked. In Mohan Raj v. Suendra Kumar Taparia (1969) 1 SCR 630 this Court held that the undoubted power of the Court (i.e. the Election Court) to permit an amendment of the petition cannot be used to strike out allegations against a candidate not joined as a Respondent so as to save the election petition from dismissal for non-joinder of necessary parties. It was said, "The court can order an amendment and even strike out a party who is not necessary. But where the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The CPC applies subject to the provisions of the Representation of the People Act and any rules made there under (see Section 87). When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the CPC cannot be used as a curative means to save the petition.
Again, in K. Venkateswara Rao v. Bekkam Narasimha Reddi (1977) 1 SCR 679 it was observed:
With regard to the addition of parties which is possible in the case of a suit under the provisions of Order 1 Rule 10 subject to the added party''s right to contend that the suit as against him was barred by limitation when he was impleaded, No. addition of parties is possible in the case of an election petition except under the provisions of Sub-section (4) of Section 86.
Therefore, it was held by the Hon''ble Supreme Court that only those who are eligible to be the parties as per Section 82 of the Act alone can be the parties to the election petition.
7.5. In fact, in a subsequent case, a specific question as to whether the Returning Officer or the Election Commission should be made a party came to be agitated before the Hon''ble Supreme Court in
... Mr Venkataramani relied upon the observations made by this Court in M.S. Gill v. Chief Election Commissioner (1978) 1 SCR 272, wherein the Court had observed that the Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances and submitted that the basis of electoral democracy being a free and fair election and fairness imports an obligation to see that No. wrongdoer candidate benefits from his own wrong. In case where allegations are made against the Returning Officer or the Chief Electoral Officer with regard to the conduct of the election, there should be No. bar to array them as parties and according to Mr. Venkataramani in Gill case the Chief Election Commissioner was a party and, therefore, this Court in Jyoti Basu and Ors. v. Debi Chosal and Ors. (1982) 3 SCR 318 as well as the subsequent case, having not noticed the aforesaid judgment of the larger Bench, the latter decision will be of No. assistance. We are not in a position to accept the submission of Mr. Venkataramani inasmuch as in Gill case an order of the Election Commissioner was under challenge by filing a writ petition and it was not an election petition under the provisions of the Representation of the People Act. There is No. dispute with the proposition that a free and fair electoral process is the foundation of our democracy, but the question for consideration is, whether by indicating in the Act as to who shall be arrayed as party, the court would be justified in allowing some others as parties to an election petition. For the aforesaid proposition, Gill case is No. authority. Mr. Venkataramani then relied upon the decision of the Calcutta High Court in
7.6. In fact, when O.A. No. 350 of 2007 filed by the Returning Officer to strike off his name was taken up, this Court has considered as follows:
3. Mr. M.R.Raghavan, learned Counsel for the applicant has brought to my notice the judgment of the Supreme Court reported in AIR 2002 SC 1041 (Michael B. Fernandes v. C.K. Jaffar Sharief and Ors.). In the said judgment, the Apex Court considered Section 82 of the Representation of People Act and has held that in an Election Petition, parties referred to in Section 82 of the said Act alone are necessary and can be added as Respondents. The Apex Court has also held that in view of the said provision, the Election Commissioner, Returning Officer and Chief Electoral Officer need not be added as Respondents in the Election Petition.
7.7. Therefore, legally it is settled that the Returning Officer is neither a necessary nor proper party for the decision in the election petition. In such view of the matter, the deletion of the Returning Officer, even if it is not opposed by the Petitioner, has No. bearing to the present election petition.
7.8. Issue (ii) is answered accordingly.
Issue - (i):
8.1. Mr. K.M.Vijayan, learned Senior Counsel appearing for the first Respondent, by relying upon Section 83(1)(b) of the Act, has contended that the election petition which does not contain any allegation regarding corrupt practice against the first Respondent is not maintainable.
8.2. Section 83 of the Act, which speaks about the contents of the election petition and which is as follows:
Section 83. Contents of petition.-(1) An election petition-
(a) shall contain a concise statement of the material facts on which the Petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the Petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the Petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the Petitioner and verified in the same manner as the petition.
no doubt in Sub-section (b) mandates to set forth corrupt practice when the Petitioner makes allegation and even in the pleadings in the affidavit filed in support of the election petition, the Petitioner has not made any specific allegation of corrupt practice against the first Respondent and in the evidence of the Petitioner witnesses also there is No. allegation against the first Respondent and therefore, it is not a case of corrupt practice alleged against the returned candidate and strictly construing Section 83(1)(b) of the Act, there is No. corrupt practice against the first Respondent.
8.3. However, by the construction of Section 100 of the Act, which enables this Court to declare election to be void on certain grounds, it is clear that other than corrupt practice, if this Court comes to a conclusion on evidence that there has been improper reception, refusal or rejection of any vote which materially affects the result relating to the returned candidate, the election of the returned candidate can be declared as void. It is relevant to extract Section 100 of the Act which is as follows:
Section 100. Grounds for declaring election to be void.-
(1) Subject to the provisions of Sub-section (2) 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 or the Government of Union Territories Act, 1963 (20 of 1963)); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied-
(a) that No. such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(b) * * * * *
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any
corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.
8.4. Therefore, while the Act enables the High Court in an election petition to declare the election of a returned candidate as void even other than on the ground of corrupt practice, what is stated in Section 83(1)(b) of the Act is more procedural in nature, viz., if corrupt practice is alleged by the Petitioner, he shall include the full statement regarding the parties who are alleged to have committed such practice with date and place of commission of such practice.
8.5. In the light of Section 100 of the Act which enables this Court to declare the election void even other than on the ground of corrupt practice, especially in the circumstance that the petition itself has been filed by the Petitioner only in respect of the counting of postal ballot papers stating that the provisions of the Rules have not been followed by the Returning Officer, it cannot be said that since an allegation of corrupt practice has not been made against the returned candidate on the facts of the present case, the election petition is not maintainable.
8.6. Accordingly, issue (i) is answered to the effect that election petition is maintainable.
Issues (iii) (iv) (v) (vi) and (viii):
9.1. Now, on the facts of the present case, as per the pleadings of the Petitioner who has filed the election petition to declare the election of the first Respondent as void, it is restricted only in respect of the postal ballot papers. As it is seen in Form 20 marked as Ex.P3 through P.W.1, in respect of the electronic voting machines counting, the Petitioner has secured 43003 votes, while the first Respondent has secured 42784 votes, which is less than the votes secured by the Petitioner.
9.2. As per Ex.P3 (Form 20), apart from the first Respondent being polled 296 postal ballot votes and the Petitioner being polled 24 postal ballot votes, various other candidates have also been polled. For instance, Saraswathi, who is the second Respondent, is polled one postal ballot vote, while N.Natesan, who is the third Respondent, is polled two postal ballot votes; P.Manohan, who is the fourth Respondent, is polled one postal ballot vote; Usha, who is the fifth Respondent, is polled one vote; and Kannaian, who is the sixth Respondent, is polled 48 votes.
9.3. Admittedly, there has been a receipt of 396 postal ballots as it is seen in Form 20, 23 postal ballots were rejected by the Returning Officer. In respect of the rejection of 23 postal ballots, there is No. evidence from the side of the Petitioner to show that the rejection was not by verifying the signatures in the declarations or tallying the serial numbers. In the absence of such evidence from the side of the Petitioner, it has to be construed that in respect of the 23 postal ballots rejected there is No. dispute that the Rules have been followed by the Returning Officer.
9.4. According to the Petitioner, as it is seen in the petition, out of the remaining 373 postal ballot votes, 60 covers which are in Form 13-C, which contain the declaration form in Form 13-A and a small cover containing the ballot paper in Form 13-B, do not contain any postal seal. It is true that P.W.1 while giving evidence has stated that 60 postal ballot covers in Form 13-C were brought around 9.30 a.m. to the counting hall and it was brought by a person and the covers have not contained any postal seal. However, in Ex.P5, which is the copy of telegram stated to have been given by the Petitioner, except stating that he is objecting in respect of the counting of the postal votes as certain invalid votes were taken into consideration, he has not chosen to give any particulars about the 60 postal ballot votes which were stated to have been brought in Form 13-C without postal seal. The said complaint itself has been despatched, as it is seen in Ex.P5, on 11.5.2006 at 19.16.25 Hours, while it is not in dispute that the results were declared much before, namely at 1500 hours on 11.5.2006.
9.5. However, it is the case of the Petitioner that he has given objection at the time of counting itself on 11.5.2006, marked as Ex.P4, which also contains the same wordings and there is nothing to show that the same has been received by the Returning Officer at the time of counting. When a specific question was put on behalf of the Petitioner to the Returning Officer (C.W.1) during cross-examination that Ex.P4 was received by him before the declaration of the result and No. action was taken by the Returning Officer, the same was denied by the Returning Officer.
9.6. Under Ex.P9 marked through P.W.1, the Returning Officer has clearly stated that No. such representation was made at the time of declaration of result and issuance of final result sheet in Form 20 and therefore, I have No. hesitation to come to the conclusion that the allegation made in the petition that 60 covers in Form 13-C were brought without the postal seal has not been substantiated by the Petitioner.
9.7. In addition to that, the Petitioner has chosen to state in the petition that in respect of 25 covers containing postal ballot papers there was No. proper signature in the declaration and therefore, he has raised objection to the Returning Officer to verify the signatures contained in Form 12 and that was not heeded to. But, unfortunately, while giving evidence, P.W.1 has not chosen to state that the declarations does not contain proper signatures and that was requested to be compared with the signatures of the voters as per Form 12, which is the letter of intimation sent by the voter with his signature to the Returning Officer.
9.8. The only other allegation of impropriety in counting the postal ballots, as it is seen in the petition filed by the Petitioner, is that in respect of 20 covers containing postal ballot papers stated to have been opened by the Counting Agent of the Returning Officer, the serial number on the small cover in Form 13-B containing the ballot papers does not tally and in spite of it the Counting Agent of the Returning Officer has opened the small cover in Form 13-B and counted the same in favour of the first Respondent, which, according to the Petitioner, is against Rule 54-A(4) of the Rules.
9.9. Under Rule 54-A, which relates to Counting of votes received by post, Sub-rule (4), which is as follows:
Rule 54A. Counting of votes received by post.
(1) to (3) ***
(4) If the said declaration is not found, or has not been duly signed and attested, or is otherwise substantially defective, or if the serial number of the ballot paper as entered in it differs from the serial number endorsed on the cover in Form 13B, that cover shall not be opened, and after making an appropriate endorsement thereon, the returning officer shall reject the ballot paper therein contained.
states that if there is No. declaration found which is in Form 13-A or such declaration has not been duly signed and attested, or if it is defective, or if the serial number entered on the declaration in Form 13-A differs from the serial number endorsed on the cover in Form 13-B, that cover shall not be opened and such vote cannot be counted.
9.10. P.W.1, in his evidence, has chosen to state as follows in this regard:
There are about 20 ballot paper numbers, which were not tallied with serial number, what has been mentioned in Form 13-B. In Form 13-A - declaration also the signature of the voters, attestation and other particulars were not verified by the Returning Officer and his assistants. I have raised objection in respect of 25 votes on this aspects. With regard to 20 postal votes, the signature in Form 13-A and 13-C are appeared to be signed by a single person.
while that is not the pleading of the Petitioner. Even in Ex.P4 (complaint), which is stated to have been given by the Petitioner immediately at the time of counting, he has not chosen to give such particulars.
9.11. On the other hand, P.W.2 (N.Nedumaran) examined on the side of the Petitioner, who is the Chief Agent of the Petitioner, has given a different version, which is as follows:
About 25 postal votes were incomplete, 25 had different serial numbers and around 25 did not have any signatures. The incomplete votes did not have names, street name, the voter ID numbers and some did not have the attestation of the officers concerned.
There is total contradiction in respect of the number of votes which are stated to be defective even among P.W.1 and P.W.2.
9.12. P.W.3, who is the Election Agent of the eighth Respondent, has stated as follows:
In about 20 votes the signatures differed. About 20 votes had identical signatures. About 25 votes were incomplete.
9.13. Therefore, there are three different versions in respect of the number of votes stated to have been deficient and in spite of it counted in favour of the first Respondent. Hence, on evidence, I have to necessarily conclude that the Petitioner has not substantiated his allegation by appreciable evidence that in respect of the 65 postal ballot votes there have been irregularities in counting by the Returning Officer. When on fact the Petitioner is unable to prove with consistent evidence, it is not possible to come to a conclusion as to whether the Rules have not been properly followed by the Returning Officer.
9.14. It is true that Rule 54-A of the Rules contemplates the method to be followed for the purpose of counting of votes received by post. The said Rule is as follows:
Rule 54-A. Counting of votes received by post.
(1) The returning officer shall first deal with the postal ballot papers in the manner hereinafter provided.
(2) No. cover in Form 13C received by the returning officer after the expiry of the time fixed in that behalf shall be opened and No. vote contained in any such cover shall be counted.
(3) The other covers shall be opened one after another and as each cover is opened, the returning officer shall first scrutinise the declaration in Form 13A contained therein.
(4) If the said declaration is not found, or has not been duly signed and attested, or is otherwise substantially defective, or if the serial number of the ballot paper as entered in it differs from the serial number endorsed on the cover in Form 13B, that cover shall not be opened, and after making an appropriate endorsement thereon, the returning officer shall reject the ballot paper therein contained.
(5) Each cover so endorsed and the declaration received with it shall be replaced in the cover in Form 13C and all such covers in Form 13C shall be kept in a separate packet which shall be sealed and on which shall be recorded the name of the constituency, the date of counting and a brief description of its content.
(6) The returning officer shall then place all the declarations in Form 13A which he has found to be in order in a separate packet which shall be sealed before any cover in Form 13B is opened and on which shall be recorded the particulars referred to in Sub-rule (5).
(7) The covers in Form 13B not already dealt with under the foregoing provisions of this rule shall then be opened one after another and the returning officer shall scrutinise each ballot paper and decide the validity of the vote record thereon.
(8) A postal ballot paper shall be rejected
(a) if it bears any mark (other than mark to record the vote) or writing by which the elector can be identified; or
(aa) if No. vote is recorded thereon; or
(b) if noted are given on it in favour of more candidates than one; or
(c) if it is a spurious ballot paper; or
(d) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or
(e) if it is not returned in the cover sent along with it to the elector by the returning officer.
(9) A vote recorded on a postal ballot paper shall be rejected if the mark indicating the vote is placed on the ballot paper in such manner as to make it doubtful to which candidate the vote has been given.
(10) A vote recorded on a postal ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.
(11) The returning officer shall count all the valid votes given by postal ballot in favour of each candidates, record the total thereof in the result sheet in Form 20 and announce the same.
(12) Thereafter, all the valid ballot papers and all the rejected ballot papers shall be separately bundled and kept together in a packet which shall be sealed with the seals of the returning officer and of such of the candidates, their election agents or counting agents as may desire to affix their seals thereon and on the packet so sealed shall be recorded the name of the constituency, the date of counting and a brief description of its contents.
9.15. On a reading of the said Rule, it is clear that under Form 12, as per Rule 19 of the Rules which is as follows:
Rule 19. Intimation by special voters.-A special voter who wishes to vote by post at an election shall send an intimation in Form 12 to the returning officer so as to reach him at least ten days before the date of poll; and on receipt of the intimation the returning officer shall issue a postal ballot paper to him.
a special voter writes to the Returning Officer with signature ten days before the poll and Form 12 specifically contemplates the signature of the voter. When the postal ballot paper is sent by the Returning Officer, the voter concerned after voting in the ballot papers puts it in a small cover which is in Form 13-B as prescribed under Rule 23(1)(b) of the Rules. The voter also signs a declaration which is given in Form 13-A as per Rule 23(1)(a) of the Rules, which contains the signature of the Elector apart from the signature of the Attesting Officer. Both the small cover in Form 13-B containing ballot paper duly pasted and the declaration in Form 13-A duly signed by the voter and duly attested are to be put in a big cover which is in Form 13-C as per Rule 23(1)(c) and sent to the Returning Officer.
9.16. The Returning Officer while opening the big cover in Form 13-C in the presence of the candidate or his agents has to verify as to whether the voter has given his declaration duly attested and signed by him in Form 13-A and also find out as to whether the serial number of small cover and large cover in Form 13-B and Form 13-C respectively tallies and only thereafter he is expected to open the small cover in Form 13-B containing the ballot. If the declaration in Form 13-A does not contain the signature of the voter or it is not attested or in cases where the serial number of the large cover in Form 13-C does not tally with the serial number in small cover in Form-B, the small cover in Form 13-B shall not be opened by the Returning Officer. With the result, such ballots cannot form part of the counting process.
9.17. For the reasons which have been stated above, on the evidence of three witnesses on the side of the Petitioner, there is No. acceptable evidence to show that the declaration in Form 13-A was not signed and serial numbers in Form 13-B and Form 13-C were not verified. Therefore, it is not possible to come to a conclusion as to whether there has been any violation of various provisions of Rule 54-A of the Rules.
9.18. There is yet another striking feature in this case. The Returning Officer, who was examined as C.W.1 and who is No. more in service of the Government, has filed a report marked as Ex.C1. In Ex.C1, the Returning Officer has stated that out of 396 postal ballot papers received up to 8 a.m. on 11.5.2006, in respect of one case there was No. declaration enclosed and in respect of 22 ballot papers they contained either more than one mark or No. mark at all and therefore, they were rejected as invalid and he has also chosen to stated that the scrutiny was made in the presence of the Assistant Commissioner (Excise) and Assistant Returning Officer/Tahsildar, Thottiam. He has stated in paragraph (3) of his report (Ex.C1) as follows:
3. It is submitted that the covers of postal ballot papers and declaration could not be verified now at this point of time since the covers are not available.
9.19. It is true that under Rule 54-A(12) of the Rules, elicited above, the valid ballot papers and rejected ballot papers shall be separately bundled and kept together in a packet, but as per Ex.C1, the covers are not available. It is not the case of the Returning Officer that the counted ballot papers and the rejected ballot papers were destroyed. Being a person retired from service, he is unable to trace out the papers. In the absence of some acceptable proof on the side of the Petitioner to prove the slightest instance of irregularity committed by the Returning Officer in the counting process regarding the postal ballot papers and also taking note of the fact that the period of election has come to an end and fresh election has also been conducted, No. useful purpose will be served in calling for the records and files once again. No. mala fide can be attributable to C.W.1 for the reason that in respect of the election conducted in 2006, Ex.C1 (report) came to be filed in March, 2011 and at this late point of time, there may be some conflict and that, in my considered view, cannot be put against the returned candidate, namely the first Respondent.
9.20. Accordingly, issues (iii) (iv) (v) (vi) and (viii) are answered to the effect that there are No. material irregularity in counting the postal ballot papers as per Rule 54-A of the Rules has been proved by the Petitioner.
Issues (vii) and (ix):
10. This Court is unable to grant any relief for various reasons, viz., prima facie case has not been made out by the Petitioner in respect of the irregularities; that the period for which election was conducted has come to an end and fresh elections were also conducted; and that the Returning Officer himself has retired long before the commencement of the trial. Therefore, the Petitioner is not entitled to any relief claimed in this election petition. Issues (vii) and (ix) are answered accordingly.
11. Before parting with the case, it is relevant to point out that the following of Rule 54-A of the Rules has to be scrupulously done for maintaining the democratic set-up. In a country and in terms of the basic object of the Act, one cannot be expected to say that after the election is over, especially when the election petition challenging the election is pending, the ballot papers could not be traced. When the Rules mandate the keeping of the bundles at least in respect of the cases where the election petitions are pending, the way in which the Returning Officer (C.W.1) has filed his report (Ex.C1) is certainly not appreciable. But there is one justification that being a retired government servant, he will not be in effective control of the documents and that may be the reason for filing such report.
In the result, this election petition is dismissed. No. costs.
