- (1.) The applicant herein is the first respondent in the above election petition and the returned candidate. He has filed the application in O.A.No. 748 of 2012 to reject the election petition under Order 7 Rule 11 CPC and other in O.A.No.5 of 2013 to permit him to produce the documents annexed therewith. The Election Petitioner in E.L.P.No.8 of 2011 is the first respondent in both these applications.
(2.) The election petitioner filed the above election petition seeking for declaration of the returned candidate viz., the applicant in these applications, from Thiruchendur Assembly Constituency in the election held on 13.4.2011 as void; for ordering re-scrutiny of the voting results recorded in the 210 electronic voting machines used for counting in the above said Assembly Constituency; for ordering repolling of 891 postal ballot papers ; to declare the election petitioner as duly elected member of the Tamil Nadu Legislative Assembly from the above said Constituency and for payment of costs and for other suitable reliefs.
(3.) The case of the election petitioner in the election petition is briefly stated as follows:- 3.1. He was one among the contesting candidates in the Tamil Nadu Assembly Elections 2011 in No.215, Tiruchendur Assembly Constituency in the elections held on 13.4.2011. The total number of voters in the Constituency were 1,89,951. He contested as a candidate belonging to All India Anna Dravida Munnetra Kalagam (AIADMK) with two leaves symbol. The first respondent (the applicant in both these applications) contested as a candidate of Dravida Munnetra Kalagam (DMK) with Rising Sun symbol. Right from the date of acceptance of nomination papers, the first respondent (the applicant in these applications) had distributed by himself and through his election agent and his party workers, lot of freebies to the voters with the sole object of attracting and inducing them to vote in his favour . The petitioner also learnt from his party workers that the first respondent has given donations to religious institutions, with the object of inducing a particular section of voters to vote in his favour. The petitioner presented a complaint in person on 8.4.2011 to the Election Observer of the said constituency and also to the District Election Officer, Tiruchendur, the Superintendent of Police, Tuticorin and the Returning Officer, Thiruchendur. Copies of the said complaint were also sent through fax to the Chief Election Commissioner, New Delhi and the State Election Commissioner. 3.2. The polling took place on 13.4.2011 by using 210 electronic voting machines at 210 polling booths. A total number of 1,45,351 votes were polled. The Returning Officer has not kept the postal papers (covers) received by him in safe custody until the commencement of the votes. No records with break up details of the postal ballot papers have been maintained by the Returning Officer. After the election was held on 13.4.2011, the first respondent, (the applicant in these applications) collected almost all the postal ballot papers from the eligible voters with their signatures alone through his agents by bribing the eligible voters. Thereafter, the first respondent (the applicant herein) endorsed the tick marks in the postal ballot papers through his agents and got them attested by three or four attestors only. A verification of the said ballot papers would prove that the ink used by the voters for affixing their signatures and the ink used for making the tick marks are different and that would clearly establish the corrupt practice. Thus, the postal votes polled in favour of the first respondent (applicant herein) cannot be taken into account. 3.3. The provisions contained in Rule 23(6) of the Conduct of Election Rules, 1961 have not been properly complied with by the Returning Officer. These failures on the part of the election officer have materially affected the result of the election. The counting of postal ballot paper votes was not done as provided under Rule 54A of the said Rules. The covers in Form 13C were not shown to the counting agent of the election petitioner before they were opened for verification. Thus, the mandatory provisions contained in Rule 54A (4) were not followed during the counting of postal ballot papers. The Returning Officer did not scrutinise the declaration in Form 13A contained in each cover. Thus, the Rule 54(A)(3) of the said Rules was not complied with. The petitioner gave a complaint in writing to the Returning Officer. In addition to that, he also brought to his knowledge of the irregularity in counting of the votes at Booth No. 93. But his complaint was rejected by the Returning Officer at the instance of the first respondent (applicant herein) without assigning valid reasons and thus it has materially affected the result of the election. 3.4. The authentication of the postal ballot papers were not verified with the prescribed register. The postal ballot papers were not issued to the voters as per Rule 23 of the Conduct of Election Rules, 1961. Similarly the recording of vote was not done and the elector has not signed the declaration as per Rule 24 of the said Rules. As per the instructions issued, the postal ballot papers should be in pink colour whereas some of the postal ballot papers were in other colour. The return of postal ballot papers is not in accordance with Rule 27 of the said Rules. 3.5. When the electronic voting machine for Booth No.93 was taken for counting it was found that the button meant for closing the voting was not operated and his objections raised to the counting of the votes polled through the said machine was rejected by the Returning Officer without any justifiable grounds. Two other electronic voting machines were found not working at the time of counting. The first respondent (the applicant herein) has spent more than the permitted amount of Rs.16 lakhs and thus has concealed very many expenses incurred by him.;