- (1.) This Election Petition has been filed, praying : to declare the election of the first respondent as returned candidate from No.32, Madurai Parliamentary Constituency at the election held on 13.05.2009 as null and void; to declare the deceased petitioner as duly elected as the returned candidate of No.32, Madurai Parliamentary Constituency for the election held on 13.05.2009 and to direct the respondents to pay the cost of the Election Petition.
(2.) Case of the petitioner : 2.1. He is the substituted petitioner in this Election Petition in place of the deceased petitioner P.Mohan, who contested the election for Member of Parliament in the 15th Lok Sabha, held on 13.05.2009, and he also had filed the nomination paper along with the deceased petitioner as a substitute and thereafter withdrew from the poll before the withdrawal date, as the nomination filed by the deceased petitioner was accepted. Thereafter, since he worked for the deceased petitioner through out the Madurai Parliamentary Constituency, he was well aware of all the events that took place during the campaign for the 15th Lok Sabha election held on 13.05.2009. Election Commission of India, in short, "ECI", had notified the election by notification, dated 17.04.2009, which is filed as Document No.1. The date of polling was fixed as 13.05.2009 from 07.00 a.m. to 05.00 p.m. The date of counting was fixed as 16.05.2009. The deceased petitioner contested as the candidate of Communist Party of India (Marxist) in which the substituted petitioner is also an active cadre and a State Committee Member. The first respondent had contested as the candidate of Dravida Munnetra Kazhagam (DMK) political party. 2.2. ECI had issued a code of conduct rules to be followed by all the candidates and officials at the time of conduct of election, in exercise of power under Article 324 of the Constitution of India. The code of conduct is also contained in the "Handbook for Candidates". The code of conduct, dated 07.01.2007, which had been followed in the year 2009 has been filed as Document No.2. 2.3. First respondent had been declared elected by the Returning Officer on 16.05.2009. It was declared that the first respondent secured 4,31,295 votes and the deceased petitioner secured 2,90,310 votes. The total number of votes in Madurai Constituency is 10,22,421 votes and the total votes polled was 9,90,902. These particulars were published in Dinamalar, Tamil Daily, Madurai Edition, dated 17.05.2009, which is marked as Document No.3. The election of the first respondent is liable to be declared void as per Sections 100 (1) (b), 100 (1) (d) (ii), 100 (1) (d) (iv) read with Section 123 (1) (A), 123 (1) (B) and 123 (1) (7) of the Representation of the People Act,1951, in short, "the Act". The substituted petitioner also has personal and informed knowledge about the documents that have been filed by the deceased petitioner in support of the Election Petition. 2.4. First respondent had indulged in bribing the electors by distribution of money. He also committed bribery within the meaning of Section 123 (1) (A) and 123 (1) (B) of the Act. The following members acted as agents of the first respondent and with his knowledge and consent offered gratification by way of cash to the electors in the Madurai Parliamentary Constituency by paying a sum of Rs.500/- each, inducing the electors to exercise their franchise in favour of the first respondent for 15th Lok Sabha Election, held on 13.05.2009 at Madurai : Name of the persons who acted as agents with the consent of the first respondent to bribe the electors to vote in favour of first respondent in the 15th Lok Sabha Election JUDGEMENT_590_AIR(CC)0_2014(25).html
(3.) First respondent has filed a counter affidavit, stating as follows : 3.1. He has been declared as the successful candidate in the 15th Lok Sabha held in 2009 from Madurai Parliamentary constituency, in which the petitioner was also one of the candidates. He assumed office as a Member of the Lok Sabha and also functioned as a Minister in the Union Cabinet. The substituted petitioner has amended almost the entire petition to suit his convenience. The Election Petition filed against him only exposes the political vendetta and political conspiracy to put an end to his political career. The petition is filed by a contestant of another political party who could not succeed in the election and the documents filed in support of the petition do not in any authentically prove his misconduct, as alleged in the petition. Election Petition is vague and the petitioner does not have direct knowledge of the so called incidents which are said to have happened. Neither the deceased petitioner nor the substituted petitioner has given any complaint to any official or authority in his personal capacity nor was he directed by the party to give any complaint nor was he at least a person who signed the complaint along with other party men. 3.2. Under Section 83 (1) (c) of the Act, an Election Petition shall be signed by the petitioner and verified in the manner as laid down in the Code of Civil Procedure,1908, for the verification of the 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. The said provision is not complied with even though the Supreme Court granted liberty to file an affidavit as required under the above proviso within the time. Therefore, the amended Election Petition is not proper and not validly presented in accordance with Section 83 (1) (c) of the Act in spite of the liberty given by the Supreme Court of India. Therefore, the amended Election Petition is also defective in material respect and non-compliance of this requirement amounts to dismissal of the amended Election Petition. The dates mentioned in the Election Petition as well as in the amended Election Petition filed subsequently that the cause of action arose on 13.05.2006 and 16.05.2006 are imaginary dates and no cause of action arose on those dates as alleged, as the election took place in the year 2009 and not 2006, as mentioned in the petition. Since the election petitioner as also the substituted petitioner have not properly mentioned the date of cause of action this amended election petition is liable to be dismissed for want of cause of action. 3.3. The documents filed along with the Election Petition were based on the information given by the petitioner's party secretaries and agents belonging to his party to the original petitioner late Mohan. Hence, the authenticities of the allegations are doubtful and also questionable and cannot be used by the substituted petitioner. There were 10 other contestants belonging to different parties; some were independent candidates; no other party or candidate has given any complaint or has expressed any grievance against him nor anybody other than the representatives of the election petitioner has given any complaint to the Election Commission for the alleged money distribution or gross misconduct committed by the first respondent or the members of his party. The popularity the first respondent had with the people has made him victorious in the election and sensing the possible defeat the deceased petitioner has levelled false and baseless charges against him by giving false complaints to the Election Commission and to the police. No paper clipping mentions or accuses him or his party men of any misconduct. No credibility can be given to the newspaper clippings, as they are not authoritative pieces of evidence. The authenticity of the documents marked is questionable as the original petitioner is not alive to substantiate the documents, as he had attested the documents during his life time. Nowhere, the deceased petitioner has shown with solid proof that neither the first respondent nor his party men were involved in the election misconduct. The deceased petitioner has given a tabular column, in which he has furnished the names of some persons who were alleged to have acted on behalf of the first respondent and against whom the complaints were lodged and the dates of occurrence of misconduct, which are all false. All the complaints which are marked as documents do not show the complicity of the first respondent either directly or indirectly. 3.4. The persons of the party functionaries of the first respondent mentioned in the election petition have not done anything against the model code of conduct. Their names are unnecessarily dragged in to create a case. The vehicles and covers seized during the election have nothing to do with the first respondent and there is no evidence to show that the said vehicles belonged to the first respondent or to his party functionaries. Neither he nor his party functionaries were involved in the act of distribution of slips. The substituted petitioner does not have direct knowledge for the alleged happenings. 3.5. The newspaper clippings which are marked as documents cannot be construed as genuine documents or authenticated documents, as it is routine or usual for all the newspapers to report about the day-to-day happenings. The allegation that women folks took aarthy and one Raghupathy belonging to the party of the first respondent distributed tokens to the persons who took aarthy and later Rs.100/- was distributed to people who took aarthy and the deceased petitioner was able to get one such token from his party workers is false as no such incident has happened and it is created for the purpose of this case. Document No.18, marked along with the petition, is nothing but a slip given by the booth agent for easy identification of the names of the voters. This is adopted by all the political parties in all the elections as it is a routine one and therefore this document cannot be taken as a piece of evidence. The allegation that the party functionaries of the first respondent distributed tokens to some section of the people when the first respondent was campaigning in the Melur Assembly Constituency is absolutely baseless and there is no proof to establish the same. This respondent or his men have nothing to do with all other documents, as they were not involved in such acts and they are created for the purpose of this case and, therefore, the said documents cannot be taken as pieces of evidence against this respondent. The alleged complaint of distribution of sarees and dhotis is only imaginary. It is also not established that the bundle of sarees and dhotis were meant for distribution to the voters by the first respondent or by his party men. 3.6. The accusations of the petitioner against the Public Relations Officer of Tamil Nadu are baseless and mischievous. The petitioner has accused the first respondent of using his influence to make the State Transport Corporation to ply buses on various routes in and around Melur and the complaint to this effect to the Tamil Nadu State Election Officer is diabolical in nature. The decision to operate buses to new places is a decision taken by the officials of the Transport Department to fulfil the needs of the people and it is the usual method adopted for the convenience of the people and hence this respondent cannot be made culpable for this happening by levelling the allegations. Regarding the statement made in the petition that the then Commissioner of Police, Madurai, misused his official position and canvassed for the first respondent to procure votes and later he was transferred, it is common that the Election Commission, at the time of election, transfers and appoints officers and bureaucrats on their own accord and the said transfer was a routine one and does not carry any basis and that the said event does not establish any alleged corrupt practice of the first respondent. Even the other contestants, who lost their deposits, did not adopt any cheap mode to accuse the victorious candidate of any irregularity as nothing of that kind had happened in the constituency. 3.7. The photographs marked of the injured party workers belonging to the communist party have nothing to do with the first respondent or with his party men. A piece of evidence was created in order to show that the first respondent was involved in the alleged vandalism and was disturbing the election process. The Election Commission, functioning as an independent body, which was closely monitoring the entire election process with assiduity, had declared his candidature as elected. The chief opposition candidate, who has secured only half the number of votes and was unable to endure or accept the victory of the first respondent in the election, has come forward with this frivolous petition with baseless and wreak charges in order to harass him and denigrate his party image by filing this frivolous petition. Since the original petitioner is a departed soul, the petitioner will not be able to prove the allegations levelled against this respondent and also the substituted petitioner had not cared to amend the prayer as he was required to do. The second prayer in the election petition that after the election of the first respondent is declared invalid, he be declared as elected is untenable as the original petitioner is deceased and the substituted petitioner was not the contestant in the election. At the time of election, anybody can give any complaint against anybody and can be accused of any misdeed and that the time of election is usual for the political parties to adopt this tactics to defame the popular candidate. The deceased petitioner kept accusing the candidate of a major political party with whom he had a straight contest and when his defeat was certain he began to adopt other mode and defaming the proposed victorious candidate and began to give complaint after complaint excluding the other nine candidates, accusing the first respondent for each and every misdeed. The allegation that the first respondent had influenced the local TV channels and directed them to canvass for him when Sri Meenakshi Temple Kumbabishekam was directly aired does not in any way establish the involvement of the first respondent. Even assuming that TV channels telecast such news, the first respondent cannot be directly or indirectly held responsible, instead of giving complaint and taking action against the TV channels during that period. The compact Discs filed along with the petition are nothing to do with the first respondent, as they are created for the purpose of this case. The deceased petitioner had found fault with each and every authority and thus questioned the functioning of the government agency, by not sparing even the Election Commission. After being unsuccessful in his endeavour to tarnish the good image of the first respondent and after all his efforts to get the first respondent lose the election failed, the frustration of the petitioner is clearly revealed in the mode adopted by him by furnishing false, misleading and fabricated statements. The prayer of the substituted petitioner to declare the election of the first respondent as null and void and declare the deceased petitioner as duly elected is quite perplexing and illogical and this Court cannot entertain and grant any relief to the defunct petitioner as he is a departed soul and not existing on the earth with flesh and blood and that the prayer of the petitioner sought ought to have been amended. In the amendment of verification, the substituted petitioner has clearly laid down that he did not have any personal knowledge and was not directly involved or a witness to the so called happenings and he has clearly stated that the information he relied upon was passed on to him by his party cadres. Therefore, it can be comprehended that the substituted petitioner has raised a new set of facts in the amended petition. A person who himself is opprobrious does not have a clear track record and whose assembly election is itself in dispute and a person who is alleged to have furnished wrong information about his religion and got elected in a reserved constituency, where an enquiry about his misdeeds is in progress, and such a person who does not possess a clean image, is pursuing this petition, stating that the first respondent has committed election misconduct and played fraud.;