Madras High Court
K.Muthu Sumathi vs The Tamil Nadu State Election ... on 9 February, 2023
CRP(MD)No.2284 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(MD)No.2284 of 2022
and
CMP(MD)No.10896 of 2022
K.Muthu Sumathi : Petitioner
Vs.
1.The Tamil Nadu State Election Commission,
Chennai – 600 106.
Rep. by its Commissioner.
2.The State Election Officer /
The Commissioner of Municipal Administration,
Chennai.
3.The District Collector / District Election Officer,
Madurai.
4.The Returning Officer / Commissioner,
Madurai Corporation.
5.The Assistant Returning Officer /
Assistant Commissioner,
Zone – II, Madurai Corporation.
6.K.Chokkayee
7.C.Anjugam
1/17
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CRP(MD)No.2284 of 2022
8.S.Amutha
9.M.Kalaiyarasi
10.M.Sona
11.R.Petchi
12.Shahin Fathima : Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
India to call for the records relating to the order dated 28.10.2022 passed by the
learned I Additional District Judge, Election Tribunal, Madurai, in Election
O.P.No.40 of 2022 and set aside the same.
For Petitioner : Mr.T.Lajapathi Roy,
Senior Counsel
for Mr.S.Rajasekar
For Respondents : Mr.B.Saravanan,
Senior Counsel
for RR.1, 4 & 5
Mr.A.Baskaran,
Government Advocate
for RR.2, 3
*****
ORDER
The petitioner was a candidate and she contested for the post of Councilor
of Ward No.26 of Madurai Corporation, but has failed. She has filed a petition in
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CRP(MD)No.2284 of 2022
Election O.P.No.40 of 2012 under Rule 118 of the Tamil Nadu Town Panchayats,
Third Grade Municipalities and Municipal and Corporation Councils (Elections)
Rules, 2006, before the I Additional District Court, Election Tribunal, Madurai, for
a declaration and for recounting of the votes. The trial Court, by order dated
28.10.2022, dismissed this application and aggrieved over the same, the petitioner
has filed the present revision petition.
2.According to the petitioner, she contested for the post of Councilor of
Ward No.26 of the Madurai Corporation and her grievance is that the sixth
respondent herein, who was her rival candidate, had been wrongly declared as the
successful contestant. The polling of votes was conducted on 19.02.2022 from
07.00 am to 06.00 pm and there were 11 booths starting from booth nos.314 to
323. The petitioner contends that the Presiding Officer has not given the actual
number of votes secured and recorded in booth no.320, which eventually led to
malpractice and favoritism in respect of the sixth respondent. The further case of
the petitioner is that the fifth respondent, in a pre-judgmental manner, counted the
votes polled in Ward No.26 and arbitrarily declared the sixth respondent as the
successful candidate.
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CRP(MD)No.2284 of 2022
3.Heard the learned Counsel appearing for the respective parties and
perused the materials placed on record.
4.The Hon'ble Supreme Court in Vadivelu v. Sundaram [(2000) 8 SCC
355], has held as follows:-
“16. The result of the analysis of the above cases would show that
this Court has consistently taken the view that re-count of votes could be
ordered very rarely and on specific allegation in the pleadings in the
election petition that illegality or irregularity was committed while
counting. The petitioner who seeks re-count should allege and prove
that there was improper acceptance of invalid votes or improper
rejection of valid votes. If only the court is satisfied about the
truthfulness of the above allegation, it can order re-count of votes.
Secrecy of ballot has always been considered sacrosanct in a
democratic process of election and it cannot be disturbed lightly by bare
allegations of illegality or irregularity in counting. But if it is proved
that purity of elections has been tarnished and it has materially affected
the result of the election whereby the defeated candidate is seriously
prejudiced, the court can resort to re-count of votes under such
circumstances to do justice between the parties.”
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CRP(MD)No.2284 of 2022
5.Therefore, the issue to be decided is whether there were any improper
acceptance of invalid votes or improper rejection of valid votes by the fifth
respondent. The petitioner should also prove that the contentions are not just bare
allegations of illegality or irregularity in the counting of votes, but are legitimate
concerns by evidence.
6.To elaborate further, the Hon'ble Supreme Court in Suresh Prasad Yadav
v. Jai Prakash Mishra, [(1975) 4 SCC 822], has held as follows:-
“6. The Court would be justified in ordering a recount of the
ballot papers only where:
(1) the election-petition contains an adequate statement of all the
material facts on which the allegations of irregularity or illegality in
counting are founded;
(2) on the basis of evidence adduced such allegations are prima
facie established, affording a good ground for believing that there has
been a mistake in counting; and
(3) the court trying the petition is prima facie satisfied that the
making of such an order is imperatively necessary to decide the dispute
and to do complete and effectual justice between the parties.”
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CRP(MD)No.2284 of 2022
7.Therefore, there should be a plea stating the irregularity and evidence has
to be adduced corroborating the same, establishing a prima facie case. The
petitioner’s case has to qualify on these aspects to make out a case eligible for
recounting.
8.Local body election is governed by the Tamil Nadu Town Panchayats,
Third Grade Municipalities and Municipal and Corporation Councils (Elections)
Rules, 2006. The provision for recounting of votes is given under Rule 88 and for
the sake of convenience, the same is extracted as under:-
“88. Recount of votes. -
(1) After the completion of the counting and recording in Form 25
the total number of votes polled by each candidate under sub-rule (2) of
rule 86, the Returning Officer shall announce the same. After such
announcement and before the declaration of the result of the election, a
contesting candidate or in his absence his election agent, may apply in
writing to the Returning Officer for a recount of all or any of the votes
already counted stating the grounds on which he demands such recount.
(2) On such application being made, the Returning Officer shall
decide the matter and may allow the application in whole or in part, or
may reject it in toto if it appears to him to be frivolous or unreasonable.
(3) Every decision of the Returning Officer under sub-rule (2)
shall be in writing and contain the reasons therefor.
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CRP(MD)No.2284 of 2022
(4) If the Returning Officer decides under sub-rule (2) to allow an
application either in whole or in part, he shall - (a) count the votes
again in accordance with his decision; (b) amend the result sheet in
Form 25 to the extent necessary after such recount; and (c) announce
the amendments so made by him.
(5) After the total number of votes polled by each candidate has
been announced under sub-rule (1) or under sub-rule (4) of this rule,
the Returning Officer shall complete and sign the result sheet in Form
25 and no application for a recount shall be entertained thereafter:
Provided that no step under this sub-rule shall be taken on the
completion of the counting until the candidates or the election agents
present at the completion thereof have been given a reasonable
opportunity to exercise the right conferred by sub-rule (1).”
9.According to the petitioner, no reasonable opportunity was given to her as
contemplated under Rules 88(1) and 88(5) to raise a request for recounting. It
appears that the petitioner, by e-mail dated 22.02.2022, marked as Ex.P6,
requested for re-totalling and recounting of votes, after the counting. This request
was made on the ground that the fifth respondent herein has hurriedly declared the
election result, without giving enough time to raise objection or appeal for
recounting of the votes. The fifth respondent by order dated 24.02.2022, marked as
Ex.P7, rejected the request made by the petitioner in toto under Rule 88(2) stating
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CRP(MD)No.2284 of 2022
that when the votes were counted and announced in the speaker, no objection was
given by the petitioner and that therefore, they went on to declare the result and
that this petition was filed only after the declaration of results.
10.There is a clear statutory embargo under Rule 88(1) that after the
declaration of results, an application for recounting of results cannot be filed. In
the decision in R. Natarajan v. State Chief Election Officer, State Election
Commission, Government of Tamil Nadu [(2011) 2 LW 259], in a similar
situation, it has been held as follows:-
“28. As per Section 103 of Indian Evidence Act, 1872, the burden
of proof lies on the person who wishes the Court to believe in its
existence, any particular fact, unless it is provided by any law that the
proof of that fact shall lie on any particular person. In the instant case,
the Petitioner has stated that he had submitted a written request for re-
counting on 18.10.2006 and the Second Respondent refused to receive
the same, hence, he wishes the Court to believe that he had asked the
Second Respondent for re-counting in writing. Hence, the burden is
upon the Petitioner to establish the fact that he had given written
request and that the Second Respondent refused to receive the same.
Had the Second Respondent refused to receive the written request, the
Petitioner or his agent could have asked the Election Officer, the Second
Respondent to make an endorsement for the refusal in the original
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CRP(MD)No.2284 of 2022
written request. If it was received, he could have obtained endorsement
in the identical copy for having submitted his written request, when
there is a denial of written request by the Election Officer.
29. In the instant case, the Petitioner has simply produced a typed
copy before the Court below with the date 18.10.2006, without any
proof to show that he had given the same, seeking re-counting of votes,
immediately after the announcement of votes in favour of each
candidate and before the declaration of result of the election. In such
circumstances, in view of Sections 102 and 103 of Indian Evidence Act,
this Court is of the view that the plea of the Petitioner that he had given
request for recounting, that was not received by the Election Officer, the
Second Respondent herein cannot be accepted. Hence, re-counting of
votes pleaded by the Petitioner before the Court below is not legally
acceptable under Rule 66 of Tamil Nadu Panchayats (Election) Rules,
1995.”
11.The petitioner claims that after the second round of counting, she was
informed to have been elected by a margin of 148 votes and the same was also
reported in many digital media. According to her, when she was waiting to receive
the winning certificate, the sixth respondent was announced to be the winner by a
margin of 4 votes and she fled the spot immediately. The onus is on the petitioner
to prove all these allegations including the fact that she was elected by a margin of
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CRP(MD)No.2284 of 2022
148 votes. But, none of those has been substantiated by evidence, including the
evidence of any digital media reports that the petitioner claims to have happened.
The petitioner could have made an objection or written request on the spot itself
for recounting of votes and if the fifth respondent refused the same, she could have
insisted for a written endorsement, as held by this Court in R. Natrajan's case
(supra). Without showing sufficient steps, the petitioner cannot claim to have been
denied an opportunity to raise objections before the fifth respondent. A mere
allegation is not enough and the petitioner has to prove by evidence as to how the
fifth respondent colluded with the sixth respondent and declared the result
urgently, without giving time to raise any objections. Therefore, the request made
by the petitioner in Ex.P6 lacks merits, since it was filed after the declaration of
the result.
12.Apart from the above, the petitioner also raised an issue that in Form 23,
the number of votes polled in booth no.320 was left blank. As per Rule 75 of the
Tamil Nadu Town Panchayats, Third Grade Municipalities and Municipal and
Corporation Councils (Elections) Rules, 2006, the Presiding Officer shall furnish
to every polling agent present at the closing of the poll, a true copy of the entries
made in Form 23 after obtaining a receipt from the said polling agents. This Form
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CRP(MD)No.2284 of 2022
23 is marked as Ex.P5 with 11 forms, one for each polling booth in which only
Form 23 of booth no.320 lacks the total number of votes, whereas, the other forms
are properly filled. The petitioner cannot build her entire case, just because one of
the forms came out unfilled and the petitioner has to establish that there was
improper acceptance of invalid votes or improper rejection of valid votes in view
of this deficiency. The petitioner also claims that Form 23 was not given to her or
her polling agent, but no complaint was made in this regard by the petitioner. This
issue of Form 23 was also not invoked by the petitioner in her application for
recounting [Ex.P6].
13.The petitioner further contends that the postal votes secured by her were
not taken into consideration. According to the petitioner, the difference in votes is
only 4 votes and that she secured 7 out of 10 postal votes and if these 7 votes were
added to her account, she ought to have won by 3 votes. In this regard, the
petitioner also requested for the details of the postal vote through Ex.P7 dated
23.02.2022, for which, the fifth respondent replied by way of Ex.P8. A perusal of
Form-25 dated 22.02.2022 shows that postal votes were already added to the total
number of votes. This document shows that the sixth respondent received 1931
votes with zero postal votes and the petitioner received 1927 (1920 + 7) votes at
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CRP(MD)No.2284 of 2022
the end, after including the postal votes. Therefore, there is no substance in this
ground also.
14.The other grounds raised by the petitioner that the sixth respondent
distributed cash for votes and that the sixth respondent, who is a contractor, lent
money, are not supported by evidence. Moreover, these grounds were not raised by
the petitioner in her application for recounting in Ex.P6. Therefore, these
allegations seem more like an afterthought.
15.The petitioner also cannot seek refuge in the order passed by this Court
dated 18.03.2022 in CRP (MD) No.575 of 2022, which was filed for expeditious
disposal of the Election OP. The petitioner contends that a direction to videograph
the recounting was granted by the Court. But, a perusal of the order shows that this
Court has allowed CMP (MD) No.2427 of 2022 in the said revision petition in
CRP (MD) No.575 of 2022, which was filed only for the production of
videographs taken at the time of counting of votes previously, in order to
keep them in safe custody. This order has no binding on the issue in the main
petition.
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CRP(MD)No.2284 of 2022
16.The petitioner also cannot rely on the consent of the sixth respondent for
recounting of votes, because recounting of votes is beyond the preference of
parties. The Hon'ble Supreme Court, time and again, held that the preservation of
the secrecy of the ballot is a sacrosanct principle, which cannot be lightly or
harshly broken unless there is a prima facie genuine need for it. Therefore, the
contention of the petitioner that no prejudice would be caused to the other party or
that there is a narrow margin of votes become irrelevant.
17.In the decision in Kattinokkula Murali Krishna v. Veeramalla
Koteswara Rao [(2010) 1 SCC 466], the Hon'ble Supreme Court has held as
follows:-
“24. It is a settled principle of law that evidence beyond the
pleadings can neither be permitted to be adduced nor can such evidence
be taken into consideration. Moreover, even the two material issues viz.
as to whether the counting of votes by the Election Officer was in
accordance with the rules and regulations as also whether the votes
polled in favour of the election petitioner were rejected as invalid or
there was improper mixing of the votes have been found in favour of the
appellant. It is evident from the observations of the Election Tribunal,
extracted in paras 8 to 10 above, that the sole factor which had weighed
with it to order re-count was that no prejudice will be caused to the
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CRP(MD)No.2284 of 2022
appellant if the ballot papers are re-counted. Similarly, the factor which
weighed with the High Court to affirm the view of the Election Tribunal
is that re-counting of votes will reinforce the transparency in the
process of election, particularly when the margin of votes was very
narrow.
25. It needs to be emphasised that having regard to the
consequences emanating from the direction of re-counting, which may
even breach the secrecy of ballot, the doctrine of prejudice is an
irrelevant factor for ordering re-count. Similarly, a narrow margin of
votes between the returned candidate and the election petitioner does
not per se give rise to a presumption that there had been an irregularity
or illegality in the counting of votes. In the first instance, material facts
in this behalf have to be stated clearly in the election petition and then
proved by cogent evidence. Undoubtedly, the onus to prove the
allegation of irregularity, impropriety or illegality in the election
process on the part of the Election Officer is on the election petitioner
and not on the Election Officer, as held by the authorities below. In the
present case, both the forums below have found that material facts were
lacking in the election petition. Having held so, in our view, the election
petition should have been dismissed on this short ground alone. In that
view of the matter, the observation of the Election Tribunal, as affirmed
by the High Court, that the Election Officer had failed to say anything
regarding corrections and overwritings in Form 26, are neither
factually nor legally sound.”
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CRP(MD)No.2284 of 2022
18.The application filed under Rule 88 for recounting itself is barred, as it
was filed after the declaration of results. The analysis of all the other grounds
shows that the petitioner failed to prove the allegations levelled in the petition.
The petitioner has not made enough case to substantiate the fact that there was
improper acceptance of invalid votes or improper rejection of valid votes. Hence
there is no prima facie case for the petitioner establishing any irregularity or
illegality in the counting of votes.
For the reasons above, this Court is not inclined to entertain this civil
revision petition and the same is accordingly, dismissed. No costs. Consequently,
connected miscellaneous petition stands closed.
Internet : Yes 09.02.2023
Index : Yes / No
NCC : Yes / No
gk
To
1.The I Additional District Judge,
Election Tribunal, Madurai.
2.The Commissioner,
Tamil Nadu State Election Commission,
Chennai – 600 106.
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CRP(MD)No.2284 of 2022
3.The State Election Officer /
The Commissioner of Municipal Administration,
Chennai.
4.The District Collector / District Election Officer,
Madurai.
5.The Returning Officer / Commissioner,
Madurai Corporation.
6.The Assistant Returning Officer /
Assistant Commissioner,
Zone – II, Madurai Corporation.
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CRP(MD)No.2284 of 2022
B.PUGALENDHI, J.
gk
CRP(MD)No.2284 of 2022
09.02.2023
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