Duraimurugan election case full copy

by Sekar Reporter · December 3, 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Ordinary Original Jurisdiction)

O.A. No. OF 2021
IN
ELECTION PETITION NO.4 OF 2021

Duraimurugan
S/o. Mr. Duraisamy
No. 7, 5th East Coast Road,
Gandhi Nagar, Vellore-632 006 …Applicant/1stRespondent

1. V. Ramu
S/o. Mr. N.B. Varadharajulu
No.3/6, Kalleri, Gandhinagar,
Kondasamudram,
Gudiyattam – 632 601 …Respondent/Petitioner

2. K. Raja
S/o. Mr. Kuppan
No. 24, Ambedkar Street,
Kalinjur
Gandhi Nagar, Vellore-632 006.

3. K.P.Arumugam
S/o.Mr. Ponurangam
824, BajanaiKovil Street,
Kangeyanellore, Vellore – 632 006.

4. M. Sudharsan
S/o. Mr. G.Manikannan
No. 22, Narayanaswamy First Street,
Pennathur, Vellore – 632 006.

5. Thirukkumaran
S/o. Mr. Sampath
1/119, Bajar Street, Lalapet,
Walaja, Ranipet- 632 405.

6. A.S. Raja
S/o. Mr. A.Sagadeva
No. 27/25, Gejaraja Mudaliyar Street
Dharapadavedu, Katpadi- 632 007.

7. R.S.Sridhar
S/o. Mr. K.R.Subramaniam
No.1, Kalarmedu Street
Pallikuppam Village (Post) Katpadi- 632 007.

8. J. Anandhi
D/o. Mr. Jayaseelan 13, Budder Street
Thiruvallur Nagar Katpadi, Vellore-632 007.

9. P. Dhanajayan
S/o. Mr. Parthasarathi Naidu 5/24,
RamarKovilStreet
AthingavariyurPonnai – 632 514.

10. R. Baskaran
S/o. Mr. K. Ramasami
No. 2/16, 16th East Cross Road, Gandhi Nagar
Katpadi, Vellore – 632 006.

11. Raman
S/o. Mr. Ramasami
No. 166, Valluvar Street,
Viruthampet Gandhi Nagar,
Vellore- 632 006.

12. K. Ramu
S/o. Mr. Kandaswamy
1/124, PillaiyarKoil Street Kugaiyanellore(Post)
ThiruvalamKatpadiTaluk
Vellore District 632 515

13. D. Ramu
S/o. Mr. Durai
No. 42, KasthuriBaiStreet,
Dharapadavedu, Vellore- 632 006.

14. V.Vinayagam
S/o. E. Vijiyan
No. 29/A, Small Street Vallimalai, Katpadi
Vellore District- 632 520.

15. The Returning Officer,
No.40, Katpadi Assembly Constituency
Special Deputy Collector
Vellore District …Respondents/Respondents

AFFIDAVIT OF DURAIMURUGAN

I, Duraimurugan, S/o. Mr. Duraisamy, Indian, aged about 83 years, residing at No.7, 5th East Cross Street, Gandhi Nagar, Vellore 632 006 do hereby solemnly affirm and sincerely state as follows:–
1. I am the Applicant herein and the 1st Respondent in the above Election Petition and as such I am well acquainted with the facts and circumstances of the case. I am competent to swear to this affidavit. I submit that for the sake of convenience, the parties are referred to by their respective ranks in the above application.
2. I humbly submit that the General Elections to the 16th Tamil Nadu Legislative Assembly, 2021 (hereinafter referred to as ‘the elections’ were notified on 26.02.2021 by the 22nd Respondent through its press release issued on the same day inviting nominations of the candidates for all constituencies including the No.40Katpadi Assembly Constituency. I humbly submit that as per the schedule of election, the last date for filing nominations was 19.03.2021. I humbly submit that I filed my nomination on 19.03.2021.
3. I humbly submit that the date for scrutiny of nomination was 20.03.2021 and the Returning Officer, on being satisfied that my papers were in order, accepted my nomination. I humbly submit that the date of polling was 06.04.2021 and election results were declared on 02.05.2021. I humbly submit that I was declared as the elected candidate on 02.05.2021 and the Returning Officer issued Election Certificate on the same day. I humbly submit that I was sponsored by the Dravida Munnetra Kazhagam (DMK) Party to contest from the No.40 Katpadi Assembly Constituency in the DMK party symbol of “Rising Sun”. I humbly submit that the 1stRespondent/Election Petitioner was the runner up candidate and thus has filed the above Election Petition.
4. I humbly submit that the above Election Petition deserves to be rejected on the following grounds:–
(i) THAT the averments contained in the Election Petition are wholly vague, and bereft of material facts and hence do not meet the requirements of Sections 81, 83, 86 and 100 of the Representation of Peoples Act, 1951.
(ii) THAT a bare reading of the Election Petition does not disclose any cause of action against me for filing the above Election Petition. The allegations/averments contained in the Petition are wholly vague and bereft of material facts and do not comply with the requirements of Sections 100 and 101 of the Representation of Peoples Act, 1951. A reading of the averments in the election petition does not disclose any cause of action nor any material facts have been pleaded and hence, no ground is made out by the 1st Respondent to assail my election under the Representation of Peoples Act, 1951.
I humbly submit that therefore on the above grounds, the above Election Petition deserves to be rejected in limine. That apart, para 11 to 34 deserve to be struck off on the grounds mentioned hereunder.
5. I humbly submit that in so far as paras 1 and 2 are concerned, they are mere description of the all the parties to the Election Petition and factual statements. In so far as paras 3 is concerned, they are mere description of the petitioner and factual statements. In so far as para 4 is concerned, the 1st Respondent has merely described the issuance of the Election Notification. In so far as para 5 is concerned, the 1st Respondent has merely described the schedule for the General Election to the Legislative Assembly of Tamil Nadu. In so far as para 6 is concerned, the 1st Respondent has merely described his filing of nomination and acceptance of his nomination by the Returning Officer, the 15th Respondent herein.
6. In so far as para 7 is concerned, the 1st Respondent has merely mentioned that he has contested for AIADMK and I have contested in the election as candidate of Dravida Munnetra Kazhagam (DMK); there are no averments/allegations against me except to say that I contested in the election as candidate for DMK. In so far as para 8 is concerned, the 1stRespondent has merely mentioned about issuance and coming into effect of the Code of Conduct and instructions for candidates and Returning officers.
7. In so far as para 9 is concerned, the 1st Respondent has merely mentioned about counting of votes and declaration of result.
8. In so far as para 10 is concerned, the 1stRespondent lists out the prayer in the above election petition. Hence, till para 10, there are no allegations or grounds to set aside my election.
9. In so far as para 11 and 12 are concerned, they merely state that the election of the applicant herein is liable to be declared void. Thus there is no cause of action or grounds described in these paras. Further, they do not contain any material facts on their own and cannot be permitted to stand on their own.
10. In so far as para 13 is concerned, it simply states that my election is materially affected by the improper reception of votes which are void, by postal votes and by non-compliance with provisions of the Constitution of India, Representation of People Act, 1951 and the Conduct of Election Rules, 1961, the entire paragraphs are bereft of material facts and is totally vague and as a result, is contrary to Sections 83 of the Representation of Peoples Act, 1951.
11. I humbly submit that the Hon’ble Supreme Court of India has held in catena of cases that in so far as Election Petitions are concerned, allegations must state the full material facts relating to the averments and allegations raised in the Election Petition in order to enable the successful candidate to defend himself and further to weed out vexatious and frivolous election petition. Thus, the failure to state which postal vote, how many postal votes, why they are void, what is the non-compliance, which provision has been violated etc. renders this paragraph liable to be struck off as it is bereft of material facts, vague, vexatious and frivolous.
12. In so far as para 14 is concerned, the 1st Respondent has simply stated that the counting of votes was in direct violation and non-compliance of the constitution and laws. How and what was the non-compliance has not been stated. The 1st Respondent has not even alleged that the Applicant has any knowledge or role in the alleged irregularities. Therefore the para 14 is vague, bereft of material facts and particulars, does not disclose any cause of action and is liable to be struck off.
13. I humbly submit that in so far as para 15 is concerned, the 1st Respondent has merely stated that there are irregularities in counting process and it materially affects the result of the election in so far it concerns the returned candidate, the Applicant herein and the 15th Respondent failed to conduct counting process in accordance with Representation of People Act, 1951 and the Conduct of Election Rules, 1961. The 1st Respondent has not stated what are the irregularities, who committed them, the 1st Respondent has not even alleged that the Applicant has any knowledge or role in the alleged irregularities. The counting of votes was done in accordance with the provisions and mandates of Conduct of Election (Amendments) Rules 1992 and notifications issued by the Election Commission of India. During the process of counting, the counting agents of the applicant and the counting agents of all the candidates and Election Observer was also present to ensure that the counting process is done in accordance with law. More so the second limb of averments made in para 15 is unnecessary and does not disclose any cause of action. Therefore contention in the para 15 is vague, bereft of material facts and particulars, does not disclose any cause of action and is liable to be struck off.
14. I humbly submit that in so far as paras 16 & 17 are concerned, the Respondent has simply stated that the Returning Officer has failed to conduct counting of postal votes in accordance with the provisions of acts and rules. The 1st Respondent has not stated what was the violation, which rule was violated, what time the violation occurred, how many postal covers were not scrutinized properly, what were their serial numbers etc. The 1st Respondent has not even alleged that the Applicant has any knowledge or role in the alleged irregularities. Therefore the paras 16 & 17 are vague, bereft of material facts and particulars, does not disclose any cause of action and is liable to be struck off.
15. I humbly submit that in so far as para 18 is concerned, the same is vague, bereft of material facts and particulars and does not disclose any cause of action against the applicant. The 1st Respondent has not stated the cover of which postal ballot was not properly verified, the serial number of such postal cover, the time when it was taken up, how many such covers were not verified etc. The petitioner has simply stated that he raised an objection that the votes polled by postal ballot did not contain the necessary seal of the Gazetted Officer and votes. However the petitioner has failed to state material facts specifically as to how many votes polled by postal ballot did not contain necessary seal of Gazetted Officer and details of postal ballots, serial numbers and the particulars of the center from which these postal ballots were brought etc. I submit that the counting process was done in accordance with the Representation of People Act, 1951, Conduct of Election Rules, 1961 and Handbook of instructions for Returning Officers. The 1st Respondent has merely stated that the 1st respondent has refused to receive the representation of the 1st Respondent dated 02.05.2021. The 1st Respondent has not stated when the alleged representation was given, by whom it was given. The alleged representation dated 02.05.2021 has not even been filed along with this election petition. Therefore the averment of the 1st Respondent that postal votes were not counted in accordance with Rule 54-A of Conduct of Election Rules, 1961 thereby materially affecting the result of the election in so far it concerns the returned candidate is vague and liable to be rejected. The 1st Respondent has not even alleged that the Applicant has any knowledge or role in the alleged irregularities. Therefore the para 18 is vague, bereft of material facts and particulars, does not disclose any cause of action and is liable to be struck off.
16. I humbly submit that in so far as paras 19 & 20 are concerned, the same are baseless, bereft of material facts and particulars and do not disclose any cause of action against the applicant. The 1st Respondent has not stated why and how the counting of EVMs was not proper. The 1st Respondent has made a bald, baseless and imaginary claim that EVMs were not counted from Polling Stations 4, 15A(W), 19M, 110A(w) and 180M. I submit that myself and my counting agents were present in the counting hall. The EVMs were taken up for counting by the Returning officer and counting supervisors appointed for each table. I submit that counting was done in 14 tables with 14 polled EVMs in 24 rounds and the last round with 13 polled EVMs as per Election Commission of India Rules. I submit that during round 1, when the polled EVM of polling station no. 4 was taken up for counting, during round 2, when the polled EVM of Polling station No. 15A(W) was taken for counting, again during round 2, when the polled EVM of polling station No. 19M was taken up for counting and during round 18, when the polled EVM in polling station no. 180M was taken up for counting, the counting supervisors appointed by the Election Commission of India for the respective tables noted that the above said four EVMs viz. from Polling Station Nos. 4, 15A(W), 19M & 180M had “Press Ballot Error” and he handed over the said four EVMs to the Returning Officer for appropriate action in accordance with the Rules. The Returning Officer decided not to count the above said EVMs at that point in time during the regular counting for the reason that they had “Press Ballot Error” and they were segregated and kept aside for counting at the end. The above procedure is mandated by the Election Commission of India as per the notification in Lr.No. 51/8/7/2019-EMPS dated 21.05.2019 which states as follows:
“2. The Commission has considered the matter and directed that the following procedure shall be adopted during counting in all such cases:

a) In all pre-identified cases (on poll day, during scrutiny of documents on P+1 day etc.), where mock poll is either not erased from the Control Unit or VVPAT paper slips pertaining to mock poll not removed (fully or partially), the concerned Control Unit (s) shall be kept aside during counting of votes i.e. these polling stations will not be taken up for counting during the regular round-wise counting of the Control Units. The Table allocated to such polling stations shall be kept vacant during the relevant round of counting. The list of all pre-identified polling stations shall be shared with the contesting candidates before the commencement of process of counting”.

I further submit that when the Returning officer decided not to count the four above said EVMs at that point of time, he immediately announced the same, with the reason for not counting the said EVMs, to the candidates and counting agents who were present in the counting hall. I submit that 1st Respondent and his counting agents accepted the same and did not raise any objection as it is done as per instructions in ECI notification and as the EVMs were decided to be counted at the end of counting all other EVMs. I submit that with regard to EVM from polling station No. 110A (W) taken up in round 11, the same was not counted during round wise counting on account of mismatch of votes. In so far as this EVM is concerned, on the day of polling, after the end of voting, when the polling officer verified the total number of votes polled in the said EVM for recording the same in FORM 17-C, the total number of votes cast by the voters recorded in Form17-A and the total no. of votes polled in the EVM did not match. The Form 17-A which details the total number of voters who voted on that particular day shows that 514 voters voted. Therefore the total number of votes polled in the EVM must be 514 but the total number of votes in EVM polled in polling station No. 110A(W) was shown as 564. Therefore, the polling officer after noticing that 50 extra votes is reflected in the EVM when compared to the Form 17-A concluded that the mock polls polled on the day of counting before counting began was not erased before commencement of actual polling. The polling officer informed the candidates and booth agents present in the polling station that the mock polls polled in the EVM in polling station No. 110A(W) was not erased and recorded the same in FORM 17-C with his signature. The candidates and booth agents present in the polling station also agreed that the mock polls were not erased and verified the record made by the polling officer in this regard in Form 17-C and signed in the Form 17-C as well. I submit that on the date of counting viz., 02.05.2021, in round 11, when the counting supervisor took up the EVM polled in polling station No. 110A(W) for counting, he referred to the remarks in Form 17-C and informed the Returning officer that the votes polled in mock poll were not erased in the EVM. The returning officer therefore announced in counting hall to all the candidates and their agents that EVM polled in polling station No.110A(W) will not be counted for the time being for the reason that the mock poll was not deleted from the EVM before commencement of actual polling and the EVM was kept aside separately for counting as per the ECI notification at the end of all rounds of counting. As stated above, the 1st Respondent and his agents were clearly informed even on the date of polling that the votes polled during mock polls were not deleted from the EVM before commencement of actual polling and the agents of the 1st Respondent had accepted the same and signed in Form 17-C. Again on the date of counting, the 1st Respondent and his counting agents were informed that the votes polled in EVM were not being counted during round wise counting for the reason that the votes polled during mock poll were not deleted from the EVM before commencement of actual polling and the EVM will be counted at the end. I submit that at the end of all rounds of counting, the four EVMs viz. the EVMs in Polling Station Nos. 4, 15A(W), 19M, & 180 M which were segregated for counting at the end were counted. The results of these EVMs find place in the final result sheet filed along with the election petition. Therefore, the statement that these EVMs were not counted deserves to be struck off as it is ex-facie frivolous, vexatious, and abuse of process and in the teeth of documents filed by the 1st Respondent/ Election Petitioner himself. Then the last and final EVM that was to be counted is EVM polled in polling station No. 110A(W). I submit that at that point of time after completion of all the rounds and counting of all the other EVMs and postal votes, the margin of victory between the 1st Respondent and the applicant was 764 and the total number of votes polled in polling station No. 110A(W) was 514 (564 including 50 votes polled during mock poll). I submit that therefore, the Returning Officer announced that since the victory margin is more than the votes recorded in Polling Station No. 110A(W), the EVM is not taken up for counting as per instructions in Notification issued by the Election Commission of India in No. 51/8/7/2019-EMPS dated 21.05.2019 which reads as follows:
3. After the completion of all regular rounds of Control Unit counting, the following procedure shall be followed.
A.For State Assembly Elections:

(i) If the winning margin is more than the total votes polled in all such polling stations, these polling stations, identified as per para 2 (a) & (b), will not be taken up for counting and the result will be declared without these polling stations.

Therefore the EVM polled in polling station No. 110A(W) was not counted and the same was announced to the 1st Respondent and other candidates and their agents present in the counting hall. I submit that the 1st Respondent himself accepted the same and did not raise any objection for not counting the EVM polled in polling station No. 110A(W). However, the 1st Respondent by suppressing all the above said material facts have filed the above election petition with vague, frivolous, vexatious allegations that five EVMs were not counted. I submit that it is apparent from Form 20 Final Result sheet filed as document (Sl. No. 4) that votes polled in polling station no. 4, 15A(W), 19M and 180M were counted. I submit that the votes polled in polling station No. 110A(W) alone was not counted for the above said reason. I submit that the 1st Respondent did not raise any objection and no written objection/representation was given by the 1st Respondent in this regard. I submit that the 1st Respondent has baldly stated that the EVMs were not counted despite the objection raised by the 1st respondent because of the pressure from the members of the DMK political party. Here again the 1st Respondent has not averred what time he made the objection, either (oral or written), what are the contents of the objection. The 1st Respondent/Election Petitioner has not filed the copy of the objection, nor has not stated which member of the DMK pressurized, whom they pressurized, how they pressurized etc. The 1st Respondent has not even alleged that the Applicant has any knowledge or role in these events. Therefore the paras 19 & 20 are vague, vexatious, frivolous, bereft of material facts and particulars and does not disclose any cause of action and is liable to be struck off.
17. In so far as para 21 is concerned, the 1st Respondent has merely stated that the 1st Respondent’s request for scrutiny of VVPAT was declined and the 15th Respondent refused to receive the written complaint of the 1st Respondent. The said objection is not filed along with the election petition. The 1st Respondent has not stated what was the objection, what time it was given and by what time he requested for scrutiny of VVPAT (Paper Trail) as per Rule 56-D of the Conduct of Election Rules, the reason for requesting Paper Trail etc. Further, the 1st Respondent has not even alleged that the Applicant has any knowledge or role in the alleged irregularities. I submit that myself and my counting agents were present in the counting hall. The 1st Respondent did not raise any objection and he did not give any representation in writing to the returning officer. The entire event in recorded in the CCTV camera fixed in the counting hall. Any request for scrutiny of such Paper Trail should be made through written application, which is not averred in the election petition. The 1st Respondent has made vague and baseless allegations in the election petition without any proof for the same. Therefore the para 21 is vague, frivolous, vexatious, bereft of material facts and particulars, does not disclose any cause of action and is liable to be struck off.
18. In so far as para 22 is concerned, the 1st Respondent has merely stated that at a point of time during counting of EVMs, he was leading but it does not mean that the 1st Respondent was leading throughout the end. The applicant herein obtained more number of postal votes when compared to the 1st Respondent and at the end of counting of all EVMs and postal votes, I was leading and the victory margin was higher than the total number of votes polled in polling station No. 110A(W), thereby there was no necessity to count the votes polled in the polling station No. 110A(W). The averment that the 1st Respondent was leading at some point of time does not change the fact that the applicant has secured more number of votes and was declared as returned candidate. Further, this allegations at para 22 is unnecessary and does not disclose any cause of action to file the present election petition and therefore para 22 is liable to be struck off.
19. In so far as para 23 is concerned, the 1st Respondent has merely stated that he was leading at the end of Round 26, the petitioner was leading by 86 votes. The above calculation is without including the postal votes polled in favour of the candidates. The valid reason for not counting the votes polled in EVM in polling station No. 110A(W) was as per the notification of the ECI dated 21.05.2019 and was announced to all the candidates in the counting hall. I submit that the 1st Respondent did not make any objection for not counting votes polled in polling station No. 110A(W). Without any material facts or basis, the 1stRespondent has merely stated that he raised objection and DMK members started creating disturbance and threatened the 1st respondent and the 15th Respondent with dire consequences if the EVM is counted. The 1stRespondent has not pleaded material facts regarding this allegation. The 1st Respondent has not mentioned names of DMK persons who threatened, time and nature of threat. Therefore para 23 is frivolous, vague, baseless and thus liable to be struck off.
20. In so far as para 24 is concerned, the 1st Respondent without any basis contends that the applicant has secured more postal votes and therefore the Returning officer decided not to count the votes polled in the polling station No. 110A(W) in violation of RP Act, 1951 and the Conduct of Election Rules, 1961 whereas the actual reason for not counting the votes polled in the polling station No. 110A(W) is that at the end of all rounds of counting of EVMs and postal votes, the victory margin between the applicant and the 1st Respondent is higher than the total number of votes polled in the polling station No. 110A(W) and it is done in compliance with notification dated 21.05.2019 issued by the Election Commission of India in No. 51/8/7/2019-EMPS. As stated earlier the 1st Respondent is well aware of the reason for not counting the votes polled in polling station No. 110A(W) as the same is clearly announced by the Returning Officer in the counting hall and accepted by the 1st Respondent, his counting agents and other candidates without any objection or protest. However, the 1st Respondent has suppressed the fact that he was aware of the valid reason given by the Returning officer for not counting the votes polled in polling station No. 110A(W) and contends that the EVM is not counted in violation of law only to make it look like a valid ground to number his election petition. Thus the entire para 24 is vague, baseless, frivolous and bereft of material facts and deserves to be struck of.
21. In so far as para 25 is concerned, the 1st Respondent alleges that the Returning officer should have suo moto ordered recount of postal votes and count the EVM polled in polling station No. 110A(W). However Rule 63 mandates a written representation to the Returning Officer seeking for recount of votes which the 1st Respondent consciously did not do so, nor is it his case that he has made a written representation. The 1st Respondent after the results were announced shook hand with the Returning officer and left the place along with his counting agents without any murmur or protest, the counting of EVM polled in polling station No. 110A(W) is not necessary as per the notification issued by the Election Commission of India in No. 51/8/7/2019-EMPS dated 21.05.2019 and the mandatory re-count of postal ballot is also not required as per for the present case as per the notification issued by the Election Commission of India in No.470/20l9/SDR1 dated 18.05.2019 which reads as follows:
“3. (ii) The Commission’s instruction for mandatory re-counting of all postal ballot papers on the ground that the margin of victory is less than the number of postal ballots been revised to the effect that where the margin of victory is less than the number of Postal Ballot papers rejected as invalid at the time of counting, all the rejected Postal Ballot papers shall be mandatorily re-verified by the Returning Officer before declaration of result. Whenever, such re-verification is done, the entire proceedings should be video-graphed as per the instructions in paragraph 7 of the Commission’s letter No. 470/2009/EPS dated 21-01-2009, referred to above”.
As per the above notification mandatory re-count of postal ballot is required only when the victory margin is less than the number of postal ballots rejected. In the present case as the number of postal ballots rejected is 517 and the victory margin is 746. There was no necessity for mandatory recount of the rejected postal ballot papers as the victory margin is higher than the total number of postal ballots rejected, mandatory re-count of postal ballots is not applicable. Therefore this allegation of the 1st Respondent regarding failure to re-count the postal ballots is also per se vexatious, frivolous, against the Election Commission of India mandates, baseless, vague and does not disclose any cause of action to file the petition. I submit that the 1st Respondent has failed to substantiate on what basis he alleges that the re-count of postal ballot is mandatory in the present case. The paragraph is vague and bereft of material facts and deserves to be struck of.
22. In so far as para 26, 27 are concerned, the 1st Respondent has merely mentioned that he has secured more number of votes than the applicant herein at the end of counting all the EVMs except EVM polled in polling station No. 110A(W) and before including the number of postal ballots received in favour of each candidates.
23. In so far as para 28 is concerned, the 1stRespondent has merely mentioned that the results published in the official; website of the Election Commission of India. Thus reading of para 27, 28 of the election petition shows that the Petitioner has failed to substantiate his averments or disclose any material facts or cause of action relevant to decide the election petition and thus the same is liable to be struck off.
24. In so far as para 29 is concerned, the 1st Respondent has mentioned that in view of the objections raised, the 15th Respondent should have ordered counting of EVM pertaining to polling station No. 110A(W) and re-count of postal votes and declared the 1st Respondent as returning candidate. As stated above, there was no objection raised by the 1st Respondent regarding counting of EVM pertaining to polling station No. 110A(W) as reason for not counting that particular EVM was as per the notification of the ECI and was announced in the counting hall and the same was accepted by the 1st Respondent and his counting agent. With regard to re-count of postal ballot is concerned, as stated above it is clear from notification issued by the Election Commission of India dated 18.05.2019 that mandatory re-count of postal ballot is not necessary in the present case. Thus paragraphs Nos. 26 to 29 are entirely frivolous, vexatious, baseless, vague, imaginary and bereft of material facts and deserve to be struck of.
25. In so far as para 30 is concerned, the 1st Respondent has mentioned that the 15th Respondent declared the election result in hurried manner and counting of votes was done in non-compliance of sec. 100 (1) (d) (iii) and (iv) of the Representation of People Act, 1951 and has made repeated allegation that the representation given for counting of EVM pertaining to the polling station No. 110A(W) was not considered by the 15th Respondent and the 15th Respondent refused to receive the representation of the 1stRespondent dated 02.05.2021 without enclosing the same along with the election petition. I submit that no written objections were submitted by the 1st Respondent to the Returning officer with regard to counting of EVM pertaining to polling station No. 110A(W) and re-count of postal votes and has not filed the said objection along with this petition. Further, as stated above, these averments are totally misleading, frivolous, vexatious, vague, bereft of material facts and liable to be struck off.
26. In so far as para 31 is concerned, the 1stRespondent has made an averment regarding a letter dated 15.05.2021 sent to Tamil Nadu State Election Commission regarding improper counting of votes after 13 days from the date of counting and declaration of result. First of all, the Tamil Nadu State Election Commission has no role in the present elections. That apart, there is no scope under the provisions of the Representation of Peoples Act, 1951 for the District Election Officer or the returning officer to entertain any such representations 13 days after declaration of results. The only remedy for the losing candidate is to file an election petition. The Representation dated 15.05.2021 is an afterthought, invented to file the present Election Petition. Therefore, these averments about the representations do not disclose any cause of action to file the present petition.
27. In so far as paras 32, 33 are concerned, the 1stRespondent has made an averment regarding a letter dated 07.06.2021 sent to the District Election Officer seeking documents and reply received from the District Election Officer. The 1st Respondent contends that the Form -13 Table of votes-postal ballots with breakup have been requested by the 1st Respondent and the District Election Officer has sent a reply letter in which the above documents are listed as list of enclosures but are not issued till date. These averments do not disclose any cause of action or valid grounds to declare the election of the applicant herein as invalid. Therefore, the averments in para 33 also deserve to be struck off.
28. In so far as para 34 is concerned, the 1stRespondent has made a bald and vague averment that the counting process is vitiated as it is done without complying with the provisions of the Representation of People Act, 1951 and the Conduct of Election Rules, 1961 without any specifying what provisions were violated by what actions, on what date, time etc. Hence, this para also is bereft of material facts and vague.
29. I submit that, para 35 is repetitive of the earlier vague and bald statements and is narrating the dates on which allegedly the cause of action arose. However, if this Hon’ble Court comes to the conclusions that the other paragraphs 11 to 34 are vague, bereft of material facts and deserve to be struck off, then as a consequence, para 35 also deserves to be struck off since it is only a summation. There is no independent cause of action arising out of these paragraphs.
30. Therefore, all the averments made by the Petitioner in the above election petition are baseless, vague, unsubstantiated, bereft of material facts and full of bald allegations which are liable to be rejected. There are no valid grounds to maintain the above petition. Further, a reading of the election petition does not disclose any cause of action to maintain the election petition since the grounds mentioned under the RP Act, 1951 to set aside the election are not set out. Hence the entire election petition is vague and contrary to sec. 83 of the Representation of Peoples Act.
31. I submit that therefore, the above Election petition must be rejected in limine under Order VII Rule 11 of the CPC and the vague averments in para 11 to 34 must be struck off under O.VI R. 16 of CPC.
32. I humbly submit that the Hon’ble Supreme Court of India has time and again held that a candidate duly elected by a democratic process to work for the people of the constituency cannot be permitted to face the rigours of a lengthy protracted trial on the basis of vague and un-substantiated election petition. The sword of Damocles need not be kept hanging over the head of the elected candidate unnecessarily. I humbly submit that I have been elected from the Katpadi Constituency and I am continuously election as Member of Legislative Assembly, Katpadi Constituency from the year 1996 to till the present 2021 election and I am a loyal and dedicated public servant who has dedicated my entire life to the service of my constituents. I state that I am also presently serving as Minister for Water Resources in the Government of Tamil Nadu. Hence, I will be gravely prejudiced if I am made to face the rigours of trial on the basis of this vague, baseless, vexatious, frivolous and unsubstantiated election petition. Thus, I pray that this Hon’ble Court reject this election petition in limine.
33. I humbly submit that as stated above, paragraphs 11 to 34 are vague, bereft of material facts, does not disclose any cause of action in para 35 and do not meet the statutory requirements under the Representation of Peoples Act, 1951. Hence, paras 11 to 34 deserve to be struck off and no trial can be ordered based on the averments contained in them. If paras 11 to 34 are struck off, no trial can be held on the basis of paras 1 to 10 since they are mere statement of facts.
34. Hence, the above election petition does not satisfy the requirements of law and deserves to be rejected and as a result, the above Election Petition is liable to be rejected by this Hon’ble Court.
35. It is, therefore, humbly prayed that this Hon’ble Court may be pleased to reject the above Election Petition No.4 of 2021 and pass such further or other orders as this Hon’ble Court may deem fit and proper to pass in the circumstances of the case and thus render justice.
36. It is, therefore, humbly prayed that this Hon’ble Court may be pleased to strike off paras 11 to 34 in the above Election Petition No. 4 of 2021 and pass such further or other orders as this Hon’ble Court may deem fit and proper to pass in the circumstances of the case and thus render justice.