M. Varalakshmi vs K. Pandurangan and Others

R. Banumathi, J.—Petitioner seeks to (i) declare the election of the Returned candidate, viz., the 1st Respondent from No. 47, Anaicut

Assembly Constituency (Tamil Nadu) in the election held on 08.05.2006 in which results have been declared on 11.05.2006 as void and set aside

the same; (ii) pass an order directing fresh poll in Polling Station No. 13, Chinnapallikuppam in No. 47, Anaicut Assembly Constituency

(Tamilnadu) as per the provision of Representation of People Act, 1951 and Conduct of Election Rules, 1961 and order consequential counting

and declaration of results; (iii) declare the Petitioner as duly elected as a member of the Tamilnadu Legislative Assembly from No. 47, Anaicut

Assembly Constituency (Tamilnadu) in the election held on 08.05.2006.

Petitioner-Varalakshmi contested in the Tamilnadu Legislative Assembly Election 2006 as Pattali Makkal Katchi [PMK] candidate from No.

47, Anaicut Assembly Constituency. Polling took place in 221 Polling Stations on 08.05.2006. Electronic Voting Machines [EVMs) have been

used for polling of votes in those 221 Polling Stations and the polling was closed at 5.00 P.M. on 08.05.2006 and the EVMs were sent to

Thanthai Periyar Polytechnic, Vellore on 08.05.2006 itself and kept in a strong room. Counting of votes polled took place on 11.05.2006 from

8.00 A.M. onwards. 1st Respondent-Pandurangan was declared as elected on 11.05.2006 with a margin of ""53"" votes.

The averments in the Election Petition are that EVM from Polling Station No. 13, Chinnapallikuppam was counted in Round No. 2 in Table No.

The said EVM was verified and found that it was pertaining to Polling Station No. 13, Chinnapallikuppam. The seals were removed, but when

the button was pressed, there was some problem. One Ms. Geetha, technician was sent for and she came and verified and told that by mishandling

of EVM, the result got erased. The said EVM for No. 13, Chinnapallikuppam was counted in Round No. 2 in Table No. 1 showed against each

candidate "" 0 - 0 - 0"" as the result. The result was also written in the black board which was noted by the Petitioner''s counting agent Mr.

Parthasarathy [PW4]. Petitioner gave objection to the Election Observer at 12.10 P.M. on 11.05.2006 seeking re-polling. According to

Petitioner, everyone reconciled to the position that there will be re-polling in Polling Station No. 13, Chinnapallikuppam and hence, the Petitioner

and her Chief Election Agent and also the Counting Agents rushed to Chinnapallikuppam which was 35 to 40 km away from the place of counting.

At about 5.30 P.M., the Chief Election Agent of the Petitioner Mr. N.T. Shanmugam [PW2] received a call from the Collector asking them to

come to the place of counting. When they came to the place of counting, 1st Respondent who was the then Minister was with the District

Collector. The Returning Officer and the District Collector told the Petitioner and her Chief Election Agent that some mistake has happened and

that the votes polled in Polling Station No. 8, Gururajapalayam have not been counted and that the EVM pertaining to Polling Station No. 8,

Gururajapalayam was kept in the adjoining room and that the votes polled in the EVM pertaining to Polling Station No. 13, Chinnapallikuppam

was already counted and it has been mistakenly taken into account as Gururajapalayam. Petitioner and her Chief Election Agent made it clear that

the votes polled in No. 8, Gururajapalayam have already been counted and that the new version is an afterthought and that the EVM pertaining to

No. 8, Gururajapalayam has already been counted and the votes polled have been entered in the black board and filled up in Form-20. Further

case of Petitioner is that before 12.00 noon, the counting in all the EVMs was over and in so far as Polling Station No. 13, Chinnapallikuppam, the

votes got erased because of mishandling and it showed ""0-0-0"" against each candidate. Insofar as the votes polled in Polling Station No. 13,

Chinnapallikuppam, fresh poll was the only remedy and the results should not have been declared. According to the Petitioner, EVM pertaining to

Polling Station No. 8, Gururajapalayam was already counted in the morning of 11.05.2006 in Table No. 10 in Round No. 1. After 51/2 hours, it

was stated that the EVM pertaining to Polling Station No. 8, Gururajapalayam was not counted and that it is not permissible in law. For his own

convenience, the Returning Officer cannot set aside the earlier proceedings followed in counting of votes polled in EVMs followed in Rule 55(C),

56(C) and 57(C) in Rule 66(A) of Conduct of Election Rules, 1961 and adopt a new procedure and this has materially affected the election.

As far as Polling Station No. 13, Chinnapallikuppam is concerned, in the result sheet, the Returning Officer has made an entry that 413 votes

have been polled infavour of the 1st Respondent while EVM showed ""0-0-0"" against each candidate and Part-II of Form 17-C is illegal and void.

The said 413 votes has to be eschewed from consideration in which event the Petitioner is entitled to be declared since the margin of difference of

votes is only ""53"" votes. Mishandling of EVM has materially affected the results of the election in so far as the Returned candidate is concerned.

Petitioner seeks declaration of the election of Returned candidate as void and seeks for a direction for fresh poll in Polling Station No. 13,

Chinnapallikuppam and declare the Petitioner as duly elected candidate as a member of Tamilnadu Legislative Assembly from No. 47, Anaicut

Assembly Constituency.

Stating that he has learnt that there was interchange of EVMs, 1st Respondent has filed counter contending that at no point of time, re-poll was

ordered for No. 13, Chinnapallikuppam. Allegations of irregularities and illegalities in the counting of votes have been subsequently invented as an

afterthought. Electronic Voting Machines for Polling Station Nos. 8 and 13 were transmitted to the strong room of the counting centre with seals

intact. Insofar as EVM of Polling Station No. 8, Gururajapalayam, it was placed in the additional storage room and the Election Commission had

been informed by the developments and that there was no illegality in the counting process. As mandated u/s 83(1)(a) of R.P. Act, material facts

have not been pleaded and the Election Petition is lack of material facts and the Petition is liable to be rejected. According to 1st Respondent, the

final work of counting has been carried out as per law and neither the Petitioner nor any of her counting agents raised objection either orally or in

writing about the details which is now being sought to be made belatedly in the Election Petition. The votes polled in Polling Station No. 13,

Chinnapallikuppam was properly counted and Petitioner cannot seek for fresh poll in respect of Polling Station No. 13, Chinnapallikuppam. Case

of 1st Respondent is that Election Petition has been filed with a vague and indefinite allegation on flimsy grounds and that the Petition is liable to be

dismissed.

Respondent Nos. 2 to 8 remained exparte. 9th Respondent-Veerasami entered appearance, but has not filed any counter. The 10th

Respondent-Returning Officer of No. 47, Anaicut Assembly Constituency was struck down as per the order made in O.A. No. 916/2007 dated

18.08.2007.

On the above pleadings, the following Issues were framed.

(1) Whether there is compliance of Rules 55(c), 56(c) and 57(c) in Rule 66(A) of the Conduct of Election Rules, 1961 which has materially

affected the result of the Returned candidate?

(2) Whether the Election Petition discloses material facts as required u/s 83(1)(a) of R.P. Act, 1951?

(3) Whether the averments in the Election Petition discloses the grounds for declaring the election as void u/s 100(1)(d)(iii) and (iv) of R.P. Act?

(4) Whether the Election Commission ordered re-polling in Polling Station No. 13, Chinnapallikuppam on 11.5.2006?

(5) Whether the Petitioner is entitled to the relief of declaration that the election held on 8.5.2006 pertaining to 47, Anaicut Assembly Constituency

is void?

Issue Nos. 1 and 4 were re-cast as follows:

(1) Whether there was compliance of Rules 55(C), 56 (C) and 57(C) in Rule 66(A) of the Conduct of Election Rules, 1961?

(4) Whether re-polling in Polling Station No. 13, Chinnapallikuppam was contemplated/declared as contended by the Election Petitioner?

The following Additional Issues are framed for consideration:

Whether the votes polled in the EVM of Polling Station No. 13, Chinnapallikuppam was mishandled which resulted in erasing of votes polled

and consequently showing ""0-0-0"" against each candidate as contended by the Election Petitioner?

Whether there was non-compliance of Rules 55(C), 56 (C) and 57(C) in Rule 66(a) of the Conduct of Election Rules, 1961 which has

materially affected the result of the Returned candidate?

Whether the interchange of EVM has materially affected the election?

Election Petitioner-Varalakshmi examined herself as PW1. The Chief Election Agent for the Petitioner viz., N.T. Shanmugam [former Minister]

and the Counting Agents for the Petitioner viz., Prahalathan and A. Parthasarathy were examined as PWs.2 to 4 respectively. Mr.

Narayanamoorthy, the then Returning Officer of 47, Anaicut Assembly Constituency was examined as PW5. Exs.P1 to P5 were marked on the

side of the Election Petitioner.M. Os. 1 to 5 were also marked. On the side of contesting 1st Respondent, no oral evidence was adduced. Exs.R1

to R15 were marked.

Issue Nos. 2 and 3: In No. 47, Anaicut Assembly Constituency, there were 221 Polling Stations. Election PetitionerVaralakshmi secured

59167 votes. 1st Respondent-Pandurangan secured 59220 votes and the 1st Respondent got declared elected by ""53"" votes. There is no dispute

on facts.

In the counter-affidavit of 1st Respondent, it is alleged that the averments in Paragraphs (9) and (10) of Election Petition are not bonafide,

lacks minimum material facts and material particulars to maintain the Election Petition. It is further averred that widen facts and issues leading to

material particulars have not been averred by the Election Petitioner and hence non-disclosure of material facts and withholding of material

particulars are contrary to the very continuation of the Election Petition. 1st Respondent has further alleged that the Election Petition should contain

adequate statement of material facts and there shall be no vague pleas made in the Petition in support of material fact and it is the duty of the

Petitioner to plead with full particulars, how the counting was not done in proper manner and how the facts were wrongly accepted infavour of the

Returned candidate. Contention of 1st Respondent is that the allegation of irregularities and illegalities in the counting of votes have been

subsequently invented as an afterthought and the pleadings are not clear and precise on vital aspects and the Election Petition does not disclose the

material facts which must be pleaded and failure to plead even a single material fact amounts to disobedience of mandate of Section 83(1)(a) of

R.P. Act.

Section 83 of the Representation of the People Act, 1951 deals with contents of a petition and Rule 94A of the Conduct of Elections Rules,

1961 deals with Form of affidavit to be filed along with Election Petition. Section 83 of the Act and Rule 94A of the Conduct of Elections Rules

read as under:

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.

Rules 94A. Form of affidavit to be filed with election petition:The affidavit referred to in the proviso to Sub-section (1) of Section 83 shall be

sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in Form 25.

In Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, , the mandatory nature of the provisions contained in Section 83

was dealt with and consequences flowing from any breach of provision were set out. It was held by the Supreme Court that Section 83 is

mandatory and requires the election petition to contain first a concise statement of material facts and then requires the fullest possible particulars.

The word ''material'' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads

to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of

action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some

overlapping between material facts and particulars but the two are quite distinct. The material facts will show the ground of corrupt practice and the

complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action.

In Sardar Harcharan Singh Brar Vs. Sukh Darshan Singh and Others, , the Supreme Court held as under:

The principles have been reiterated recently in H.D. Revanna Vs. G. Puttaswamy and Others, , V.S. Achuthanandan Vs. P.J. Francis and

Another, and Mahendra Pal Vs. Ram Dass Malanger and Others, . We are tempted to quote the following passage from the three-Judge Bench

decision in Mahendra Pal''s case (supra) wherein the learned Chief Justice has summed up the statement of law in the following words:

Section 83(1)(a) of the Act mandates that in order to constitute a cause of action, all material facts, that is, the basic and preliminary facts which

the petitioner is bound under the law to substantiate in order to succeed, have to be pleaded in an election petition. Whether in an election petition,

a particular fact is material or not and as such required to be pleaded is a question which depends upon the nature of the charge levelled and the

facts and circumstances of each case. The distinction between ""material facts"" and ""particulars"" has been explained by this Court in a large number

of cases and we need not refer to all those decided cases. Facts which are essential to disclose a complete cause of action are material facts and

are essentially required to be pleaded. On the other hand ""particulars"" are details of the case set up by the party and are such pleas which are

necessary to amplify, refine or explain material facts. The function of particulars is, thus, to present a full picture of the cause of action to make the

opposite party understand the case that has been set up against him and which he is required to meet. The distinction between ""material facts"" and

material particulars"" is indeed important because different consequences follow from a deficiency of such facts or particulars in the pleadings.

Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck

off under Order 6 Rule 16 of the Code of Civil Procedure. In the case of a petition suffering from a deficiency of material particulars the court has

the discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. Thus, whereas it may be permissible for a

party to furnish particulars even after the period of limitation for filing an election petition has expired, with the permission of the court, no material

fact unless already pleaded, can be permitted to be introduced, after the expiry of the period of limitation.

[See also L.R. Shivaramagowda, Etc. Vs. T.M. Chandrashekar Etc., ; V.S. Achuthanandan Vs. P.J. Francis and Another, and Hari Shankar Jain

Vs. Sonia Gandhi, .

In a catena of decisions, it is well settled that Election Petition must set out all material facts where from inferences vital to the success of the

Election Petition and enabling the Court to grant the relief prayed for by the Petitioner can be drawn subject to the averments being substantiated

by cogent evidence. Concise and specific pleadings, setting out of material facts and then cogent affirmative evidence being adduced in support of

such averments are indispensable to the success of the Election Petition. Ofcourse, it is absolutely essential that all basic and primary facts which

must be proved at the trial by the parties to establish the existence of cause of action or defence must be averred in the pleadings.

In the light of the above well settled principles, let us examine the averments and consider whether the material facts have been set out in the

Election Petition. In the Election Petition, Petitioner has alleged that EVM from Polling Station No. 13, Chinnapallikuppam was brought in the

morning itself and counted. The specific case of Election Petitioner is that the votes pertaining to Polling Station No. 8, Gururajapalayam were

counted in Table No. 10 in Round No. 1 by opening the seal of the Electronic Voting Machine and everyone noted the same; but suddenly in the

evening a new version was sought to be put that what was counted in the morning was in respect of Polling Station No. 13, Chinnapallikuppam

and that it has been wrongly taken as Polling Station No. 8, Gururajapalayam.

In the Petition, the Election Petitioner further averred that the EVM was brought from the additional storage room which according to the

Returning Officer [PW5] was due to interchange of EVMs. When the Election Petitioner has alleged that the EVM was brought ""not from the

strong room"", it is for the Returning Officer to explain the same. Therefore, it cannot be said that the Election Petitioner has not averred the material

facts. The facts which are alleged are material facts which are all the matters for adjudication. It cannot be said that the material facts are not

pleaded. Earlier, 1st Respondent-Pandurangan has filed O.A. No. 54/2007 to reject the Election Petition filed by the Election Petitioner-

Varalakshmi for want of maintainability inasmuch as the material facts and material particulars as warranted in Sections80, 81, 82, 83, 100(1)(d)

(iii) 8(iv) and 101 of R.P. Act have not been pleaded. Election Petitioner has filed a detailed counter-affidavit referring to the material particulars

averred in the Election Petition. The said Application O.A. No. 54/2007 was later withdrawn and the same was dismissed. There is no force in the

contention of 1st Respondent that the averments in the Election Petition does not disclose the material facts and this Issue is answered infavour of

the Election Petitioner.

Issue No. 1 (re-cast); Additional Issues 1 to 3 and Issue No. 4 (re-cast): In order to understand and appreciate the evidence and allegations in

the Election Petition, it is necessary to have an understanding of functioning of EVM and as to how it is functioning as different from conventional

system of voting.

Electronic Voting Machine is a simple and reliable equipment for use in electing a candidate from among many candidates. EVM consists of

two Units viz., (i) Control Unit; (ii) Balloting Unit joined by a five-meter cable. The Control Unit is with the Presiding Officer or a Polling Officer

and the Balloting Unit is placed inside the voting compartment. Each Controlling Unit has a unique I.D. Number which is written on the Control

Unit with a permanent marker. Instead of issuing a ballot paper, the Polling Officer in-charge of the Control Unit will press the Ballot button. This

will enable the voter to cast his vote by pressing the blue button on the Balloting Unit against the candidate and symbol of his choice.

Voting by EVMs is simpler compared to the conventional system, where one has to put the voting mark on or near the symbol of the candidate

of his choice, fold it vertically and then horizontally and thereafter put it into the ballot box. In EVMs, the voter has to simply press the blue button

against the candidate and symbol of his choice and the vote is recorded. Rural and illiterate people had no difficulty in recording their votes and, in

fact they have welcomed the use of EVMs.

A special tag is prescribed to seal the inner door of ""Result Section"" in Control Unit. Each special tag shall have a unique serial number. That

apart each Control Unit will have two pink tags. Regarding user of pink tags, P.W.5 has stated that the first pink tag on the top of the Control Unit

which is a battery section is intended to protect the system ensuring that the batteries in the system are not removed. The second tag at the bottom

will be prepared by the Returning Officer and put in the carrying case of the Control Unit and sent to the respective polling stations. In the polling

stations, the respective Presiding Officers after demonstration of the Unit will put the paper seal and put the second pink tag at the bottom of the

Control Unit. That apart, two extra pink tags will be prepared by the office of the Returning Officer to be put in each carrying case of the Control

Unit.

Distribution of EVMs including Reserve EVMs - An Officer is put on duty to cover about 10 Polling Stations on the date of poll. In his

evidence, P.W.5-Narayanamurthy [Returning Officer] has stated that 221 Polling Stations were divided into 14 Zones. In each Zone, there was a

Zonal Officer in the rank of Tahsildar/Deputy Tahsildar. Returning Officer maintains a Register of allocation of EVMs to Polling Stations. P.W.5

has further stated that the day prior to the polling day, the concerned Zonal Officer was entrusted with the EVMs for the Polling Stations in his

Zone. The Zonal Officer will go to the respective Polling Stations in his Zone and hand over the concerned EVM to the Presiding Officer of each

Polling Station in his Zone on the day prior to the election. Like any other Constituency, this exercise was carried out in No. 47, Anaicut Assembly

Constituency also.

Voting - Before the commencement of polling, the Presiding Officer will demonstrate to all the Polling Booth Agents the EVMs and also

demonstrate before them that previously no votes are recorded in the EVMs. After this process, the Control Unit will be sealed and made ready

for actual polling. Before the commencement of poll, the Presiding Officer demonstrates to the Polling Agents present that there are no hidden

votes already recorded in the machine by pressing the result button. Thereafter, he will conduct a mock poll by asking the polling agents to record

their votes and will take the result to satisfy them that the result shown is strictly according to the choice recorded by them. Thereafter, the

Presiding Officer will press the ""clear button"" to clear the result of the mock poll before commencing the actual poll. As soon as the voter presses

the ''blue button'' against the candidate and symbol of his choice, a tiny lamp on the left side of the symbol glows red and simultaneously a long

beep sound is heard. The polling booth agent of respective candidates will be allowed to sit in the Polling Station throughout the poll.

As soon as the last voter has voted, the Polling Officer in-charge of the Control Unit will press the ''Close'' button. Thereafter, the EVM will

not accept any vote. Further, after the close of poll, the Balloting Unit is disconnected from the Control Unit and kept separately. The Presiding

Officer shall at the close of the poll prepare an Account of Votes recorded in Form 17-C (Part-I) and enclose it in a separate cover with the

words ""Account of Votes Recorded"" superscribed thereon [Rule 49S of Conduct of Elections Rules, 1961]. Again the Presiding officer, at the

close of the poll, will hand over to each Polling Agent present an account of votes recorded. At the time of counting of votes, the total will be

tallied with this account and if there is any discrepancy, this will be pointed out by the Counting Agents.

Sealing of EVM/Storage in strong room - At the close of poll and sealing of EVMs, the Presiding Officer will put the Control Unit and

Balloting Units in their carrying cases and seal the carrying cases and fix address tags and hand it over to the concerned Zonal Officer with polled

records and the Zonal Officer in turn will hand over the same safely to the storage room at the counting hall and other materials to the additional

storage room including Reserve EVMs. In each counting hall, there will be one storage room exclusively for polled EVMs and vote of accounts in

Form 17-C and one additional storage room for storing Reserve EVMs and other polled materials. Each EVM will have address tag containing the

number and name of the Polling Station and the date of polling, which will be affixed by the Presiding Officer. It is the duty of the Returning Officer

to supervise the verification and collection of all the polled EVMs by the Storage Officer and his Assistants. The Returning Officer is in overall

control of the working of Reception Staff and Storage Officer. As per the instruction contained in 18.1 of Hand Book for Returning Officers, the

EVMs including the ""Reserve EVMs"" should be kept and preserved in safe custody in strong room. Though the Hand Book contemplates one

strong room, in practice EVMs are kept in additional storage room. They got permission from the District Election Officer to have one additional

storage room even when they submitted the proposal for approval of counting hall and storage room.

Counting - On the date of counting, each EVM is brought to the counting table. Part-I of Form 17-C will also accompany and after verifying

the seal on the EVM and Part-I of Form 17-C, votes will be counted. The counting agents will be shown that the seals are intact and after they are

satisfied, the counting will begin.

Control Unit has Balloting section, Result section, Candidates set section, Display section and Power ''ON'' lamp. At the time of counting,

bottom compartment is opened. Inside, we find socket for interconnecting the cable of battery unit. At the time of counting, the second pink tag at

the bottom of the EVM will be taken away and the outer lid of the result section will be opened to know the result by pressing the result button.

The result section contains ""Result button"".

In her evidence, PW1 has stated that on 11.5.2006 votes polled in No. 8, Gururajapalayam were counted in Table No. 10 in the presence of

PW3-Prahalathan [Counting Agent of Election Petitioner] and that PW1 secured 377 votes and 1st Respondent secured 391 votes. P.W.1 has

further stated that EVM pertaining to Polling Station No. 9, Gururajapalayam was counted in Table No. 11 in Round No. 1. PW1 secured 155

votes and 1st Respondent secured 278 votes. In her evidence PW1 has further stated that at 8.30 A.M. the votes polled in Polling Station Nos.

11 and 12 of Chinnapallikuppam were brought to the counting table and votes were counted. Thereafter, the votes polled in No. 13,

Chinnapallikuppam was brought to the counting Table in Round No. 2 and PW4-Parthasarathy was her counting agent. She has further stated that

the total number of votes polled mentioned on the cover of EVM was 667 and that when the EVM was opened and polled votes were counted, it

was found only ""000"" as against each candidate in the EVM. PW1 has further stated that the officials called for one Geetha who is said to be a

technician of EVM and the said Geetha checked the EVM and she has reported that EVM was not handled properly and all the votes polled

therein got erased. According to the Election Petitioner, the result of Polling Station No. 13, Chinnapallikuppam was written on the black board as

000"" and therefore, P.W.4-Parthasarathy left blank as against Polling Station No. 13, Chinnapallikuppam in Ex.P1 [Note Book]. PW1 has

further stated that EVM of No. 13, Chinnapallikuppam was kept aside and other EVMs were counted and the counting process was completed at

about 12.30 noon and she gave representation [Ex.P2], requesting for conducting re-polling in Polling Station No. 13, Chinnapallikuppam. PW1

has also stated that the result was not declared at 12.30 noon and that since the District Election Officer announced re-polling can be held at

Chinnapallikuppam, she along with her Chief Election Agent [PW2-N.T. Shanmugam] went to Chinnapallikuppam which is at a distance of 40

kms away from the counting place. PW1 has also stated that on the same day evening at about 5.30 P.M., the District Election Officer called her

and her Chief Election Agent [PW2] and asked them to come to the counting place and when she and her Chief Election Agent came back to the

counting place at about 7.00 P.M., she saw 1st Respondent was present with the District Election Officer in the counting hall itself. PW1 has

further stated that the District Election Officer told them that counting of votes in No. 13, Chinnapallikuppam was already over in the morning and

that only the votes counted in Polling Station No. 8, Gururajapalayam was not counted and that the EVM pertaining to No. 8, Gururajapalayam

was kept in the adjacent room and the District Election Officer asked all of them to come forward for counting of votes of No. 8, Gururajapalayam

and the Election Petitioner raised objection for counting of votes polled in Polling Station No. 8, Gururajapalayam stating that counting for that

Polling Station was already over in the morning. PW1 has further stated that they did not go to the adjacent room to bring the EVM pertaining to

No. 8, Gururajapalayam and she does not know whether the votes polled for Polling Station No. 8, Gururajapalayam was counted or not and that

next day morning she came to know from the newspaper that 1st Respondent was declared elected for No. 47, Anaicut Assembly Constituency

by a margin of ""53"" votes.

Case of PW1 is that for Polling Station No. 13, Chinnapallikuppam, the votes polled got erased and the EVM showed only ""000"". PW1

would admit that for Polling Station No. 13, Chinnapallikuppam, the total number of votes polled is 667. But in Form-20, for Polling Station No.

13, Chinnapallikuppam the officials themselves appear to have written the number of votes casted infavour of each candidate and entries shown

against each candidate are not correct.

PW2-Mr. N.T. Shanmugam, a former Minister in Central Government was the Chief Election Agent of the Election Petitioner. In his evidence

PW2 has stated that the EVMs pertaining to Polling Station Nos. 8 & 9 of Gururajapalayam were brought to the counting Table Nos. 10 & 11

and in the EVM of Polling Station No. 8, Gururajapalayam, total number of votes polled were shown to be 774 votes and the same were counted

for each candidate and the Counting Agent Prahalathan [PW3] was present at Table No. 10. The votes polled in the EVM brought to the counting

Table No. 11 were counted in respect of each candidate. PW2 has further stated that the EVM of Polling Station No. 13, Chinnapallikuppam was

brought to the counting Table No. 1 at 8.30 A.M. for counting and the seal of EVM was verified by the officials and it was seen that the display

only shown ""000"" and the officials called for technician Geetha to check the EVM and the said Geetha informed the officials that since the EVM

was not handled properly, the total shows ""000"" and the technician has also stated that the votes polled therein have been erased due to

mishandling of EVM.

Reiterating the version of PW1, PW2 has also stated that Election Petitioner has submitted a representation to the Election Observer

requesting for re-poll in Polling Station No. 13, Chinnapallikuppam and on coming to know about the problem, the District Election Officer came

to the counting hall and stated that due to problem in the EVM pertaining to No. 13, Chinnapallikuppam, re-poll has to be conducted and since re-

poll was intended to be conducted, Election Petitioner, PW2 and their party men left for Chinnapallikuppam. PW2 has also stated that when they

reached Chinnapallikuppam at about 5.30 P.M., the District Election officer called him over his cell phone and asked to come to the counting

place at Thanthai Periyar Polytechnic, Vellore and when they reached the counting place, the 1st Respondent and District Election Officer were

present. PW2 would further state that the District Election Officer told that the votes polled in No. 13, Chinnapallikuppam were already been

counted in the morning itself and that the votes polled in No. 8, Gururajapalayam are to be counted and he further told that the EVM pertaining to

No. 8, Gururajapalayam is in the additional strong room and the same has to be brought for counting. PW2 would further state that they did not

agree and objected for the same and submitted a representation forwarding a copy to the Election Commission, New Delhi and that they did not

go to the counting hall and came out and on the next day, they saw the newspapers that the result was declared and 1st Respondent was declared

elected. In his evidence, PW2 has further stated that as per the Rules, the polled EVMs should be kept in the strong room and only those EVMs

have to be taken for counting. Since the EVM was brought from the additional storage room which has no safety measures, it amounts to violation

of election rules and the same cannot be taken up for counting. As the votes polled thereon would have been manipulated or tampered with, the

votes polled in respect of No. 8, Gururajapalayam is not correct.

PW3-Prahalathan who was the Counting Agent of the Election Petitioner for Table No. 10 has stated that EVM of No. 8, Gururajapalayam

was brought to the counting table No. 10 and it was verified and the seals were checked and the votes were counted and number of votes against

each candidate were recorded and the Counting Agents'' signatures were obtained for each EVM. The gist of evidence of PW3 is that the votes

pertaining to No. 8, Gururajapalayam were counted in the morning itself.

Gist of evidence of PWs.1 to 3 is that:

� Votes polled in EVM pertaining to No. 8, Gururajapalayam was counted in Table No. 10 in the first round in the presence of PW3-

Prahalathan, Counting Agent of Election Petitioner.

�There is no grievance about the number of votes polled and counted in respect of No. 8, Gururajapalayam and that there is no grievance about

the number of votes counted in the morning in respect of No. 8, Gururajapalayam and that the Election Petitioner got 377 votes and 1st

Respondent got 391 votes respectively.

� EVM pertaining to No. 13, Chinnapallikuppam was counted in Table No. 1 of round No. 1 in the presence of PW4-Parthasarathy, Counting

Agent of Election Petitioner and the said EVM showed ""000"".

� Re-election was ordered by the Returning Officer for No. 13, Chinnapallikuppam on the same day for which Election Petitioner and her party

men had gone to Chinnapallikuppam.

� On the evening of 11.5.2006, the District Collector/District Election Officer told the Election Petitioner and her Chief Election Agent (PW2)

that No. 13, Chinnapallikuppam was already counted in the morning and No. 8, Gururajapalayam remains to be counted.

Even though, Pws.1 and 2 have stated that the votes polled in EVM pertaining to No. 8, Gururajapalayam was counted in the morning itself, it

emerges from the evidence and other circumstances that the votes polled in respect of No. 8, Gururajapalayam were counted only in the evening;

whereas votes polled in EVMs pertaining to No. 13, Chinnapallikuppam were counted in the morning.

In continuation of functioning of EVMs, we may refer to the evidence of PW5-Returning Officer. In his evidence, PW5 has stated that 221

Polling Stations have been divided into 14 Zones. An officer was put on duty to cover about 10 Polling Stations for one Zone. One or Two EVMs

will be provided as ""Reserve EVM"" which will be in the custody of the Zonal Officer. The Zonal Officer will be having ""Reserve EVM"" and in case

any EVMs is out of order, the said EVMs can be replaced with ""Reserve EVM"".

As pointed out earlier, each Control Unit and Balloting Unit has unique I.D. Number (Label) pasted by the manufacturer on the back. At the

time when EVMs are prepared for Polling Stations, the said unique I.D. Number is written on the front cover of each Unit with permanent marker.

The said I.D. Numbers are to be noted in the Registers/Address tags and Form 17-C (Part-I) etc. The Returning Officer maintains the Register of

allocation of EVMs to Polling Stations with the following particulars:

General/Bye-Election to ........................................

1 NO. & NAME OF LOK SABHA CONSTITUENCY ..........................

2 NO. & NAME OF ASSEMBLY CONSTITUENCY ...........................

3 DATE OF POLL ..................................................

__________________________________________________________________

SL. No. & NAME OF UNIQUE ID NOs. OF UNITS REMARKS

NO. POLLING STATION ALLOCATED TO POLLING STN.

CONTROL UNIT BALLOTING UNIT

__________________________________________________________________

In his evidence, PW5 has categorically stated that there was interchange of EVMs and that the same was noticed only on the date of counting.

Interchange of EVMs are as under:

Control Unit Originally intended Handed over to Used for Counted for

No. for

D 1843 [M.O.3] P.S.No.13, Kept as Reserve by - Showed ""000

Chinnapallikuppam Zonal Officer

D 3208 [M.O.4] Reserve EVM P.S. No. 8, P.S.No.8, P.S.No.8,

Gururajapalayam Gururajapalayam Gururajapalayam

D 11920 [M.O.5] P.S.No.8, P.S. No. 13, P.S. No. 13, P.S.No.13,

Gururajapalayam Chinnapallikuppam Chinnapallikuppam Chinnapallikuppam

Since the Returning Officer (PW5) is in-charge of preparation of EVMs and allocation of EVMs to Polling Stations, much weight has to be

attached to his evidence as to the interchange of EVMs.

The points to be determined are whether the votes polled in EVM pertaining to No. 13, Chinnapallikuppam got erased due to mishandling and

whether the interchange of EVMs has materially affected the election to declare it as void.

Section 49E of Conduct of Election Rules deals with preparation of EVM for polling which reads as under:

Section 49E - Preparation of voting machine for poll. - (1) The control unit and balloting unit of every voting machine used at polling station shall

bear a label market with -

(a) the serial number, if any, and the name of the constituency;

(b) the serial number and name of the polling station or stations as the case may be;

(c) the serial number of the unit; and (d) the date of poll.

(2) Immediately before the commencement of the poll, the presiding officer shall demonstrate to the polling agents and other persons present that o

voter has been already recorded in the voting machine and it bears the label referred to in Sub-rule (4).

(3) A paper seal shall be used for securing the control unit of the voting machine, and the presiding officer shall affix his own signature on the paper

seal and obtain thereon the signature of such of the polling agents present as are desirous of affixing the same.

(4) The presiding officer shall thereafter fix the paper seal so signed in the space meant therefore in the control unit of the voting machine and shall

secure and seal the same.

(5) The seal used for securing the control unit shall be fixed in such manner that after the unit has been sealed, it is not possible to press the ""result

button"" without breaking the seal.

(6) The control unit shall be closed and secured and placed in full view of the presiding officer and the polling agents and the balloting unit placed in

the voting compartment.

As pointed out earlier, case of Election Petitioner is that EVM for No. 13, Chinnapallikuppam was counted in Table No. 1 in the presence of

PW4-Parthasarathy and the EVM showed ""000"" and that technician Geetha was called who on checking of EVM has stated that the votes polled

in No. 13, Chinnapallikuppam got erased due to mishandling of EVM. As pointed out earlier, due to interchange of EVM (MO3) intended for

Polling Station No. 13, Chinnapallikuppam was kept as ""Reserve EVM"" by the Zonal Officer. The said Control Unit was not put in use and

evidently, the same showed ""000"". Ofcourse, PW5-Returning Officer has stated that technician Miss. Geetha was called and on checking up the

EVM, it showed ""000"".

The vital point for determination is whether the votes polled in EVM pertaining to No. 13, Chinnapallikuppam could have been erased

allegedly said by the technician Miss. Geetha as stated by PWs.1 to 5?

The Returning Officer who is in-charge of EVMs prepares Balloting Unit, Control Unit as per the Manual of Instructions. Returning Officer

seals the inner door of ""candidates set section"" and also outer door of ""candidates set section"" with address tag. After preparation of Balloting Unit

and Control Unit and only after ""test check"", the Control Unit is made ready for distribution to the Polling Stations. After preparation of Control

Unit and Balloting Unit, they are packed in their carrying cases. Address tag on the carrying cases are tied with threads and sent to the Polling

Stations through the Zonal Officer. Presiding Officer check the Returning Officer''s seals and the Presiding Officer check the Balloting Unit. Both

the seals of Control Unit and Balloting Unit should not be opened by the Presiding Officer at any point of time.

As pointed out earlier, after the demonstration to the Polling Agents, Presiding Officer clear the EVM by pressing ""clear button"". Thereafter,

Presiding Officer fixes paper seals and closes the inner compartment. After sealing with outer door strip seal, the Control Unit is ready for

conducting poll. During or after the poll is over, paper strip seal is not removed. After the poll, the Control Unit with the seals intact is returned to

the Returning Officer. When EVMs are brought to the counting table, the paper seal is pierced to know the results.

As pointed out earlier, in each of the Polling Stations before the commencement of polling, the Presiding Officer will conduct the ""Mock

Polling"". Only those EVMs used for ""Mock Polling"" will be the ones used for actual polling on the polling day, after clearing the Mock Polls. Hence

hardly, there are any possibilities for mishandling of EVM and the votes polled getting erased.

As pointed out earlier, the EVM D 18543 (MO3) with tag pertaining to No. 13, Chinnapallikuppam was kept as ""Reserve EVM'' by the

Zonal Officer. Since (M.O.3), Control Unit intended for Chinnapallikuppam was actually kept as ""Reserve EVM"" which was not used for polling,

natually, it showed ""000"". The version of Election Petitioner that the votes polled in EVM pertaining to No. 13, Chinnapallikuppam got erased is

not correct. From the evidence of PW5 and by demonstration of EVM in the open Court, what we find is the EVM has been specifically designed

to collect, record, store, count and display voting data accurately. All mechanical, electronic, software security features are provided to ensure the

accuracy of the voting data. After the poll, the Control Unit with the seals intact is returned to the Returning Officer. With much of safety measures

taken, hardly, there any possibilities of being ""mishandling"" and polled votes getting erased.

Ex.P5 is the Form 17-C used for No. 13, Chinnapallikuppam. In Part-I of Ex.P5 [Form 17-C], the Control Unit is clearly mentioned as D

11920. As is seen from Part-I of Ex.P5 Form 17-C, the total number of votes polled in No. 13, Chinnapallikuppam is stated as ""667"" and all the

Polling Booth Agents and the Presiding Officer have signed in Part-I of Form 17-C. As is seen from Part-II of Ex.P5 [Form 17-C), out of 667

votes polled, the candidates secured the votes as under:

___________________________________________________________

Sl. No. Name of the Candidate No. of votes recorded

___________________________________________________________

KUMARESAN.J 12

SIVAM.C 4

PANDURANGAN.K 413

VARALAKSHMI.M 194

VENKATESAN.M 19

KALAISELVAN.V 2

DEIVASIGAMANI.B 6

NATARAJAN.T 4

PANNERSELVAM.S 4

VEERAMANI.G 9

___________________________________________________________

Total 667

___________________________________________________________

In his evidence, PW5-Returning Officer has categorically spoken about Part-I of Ex.P5 [Form 17-C] and the number of votes polled thereon

[667] and that the Polling Booth Agents and Presiding Officer have signed in Part-I of Ex.P5. The total number of votes polled actually tallied with

the number of votes in the Control Unit, M.O.5 D11920 as is clear from Part-II of Ex.P5 Form 17-C.

As per Section 46 of R.P. Act read with Rule 13 of the Conduct of Election Rules, a contesting candidate or his election agent may appoint in

the prescribed manner such number of polling agents as may be prescribed to act as polling agents of such candidate at each polling station

provided u/s 25 or at the place fixed under Sub-section (1) of Section 29 for the poll. As per Rule 13, every such appointment shall be made in

Form 10 and shall be made over to the polling agent for production at the polling station or the place fixed for the poll, as the case may be. As

stipulated u/s 49 read with Rule 13, the Election Petitioner/his Chief Election Agent would have nominated persons as Polling Agents for Polling

Station No. 13, Chinnapallikuppam.

When PWs. 1 and 2 were questioned as to the name of Polling Agents of Election Petitioner in No. 13, Chinnapallikuppam, they were

evasive. PW2-Chief Election Agent of the Election Petitioner feigned ignorance about the name of Polling Booth Agent for No. 13,

Chinnapallikuppam. As is seen from the evidence of PW5, at the end of poll, the EVM will be sealed in the presence of all the Polling Booth

Agents and the seals of respective Polling Booth Agents will be affixed on the EVM and the Presiding Officer will give the true copy of Part-I of

Form 17-C to each of the Polling Booth Agents. If Part-I of Ex.P5 Form 17-C does not pertain to No. 13, Chinnapallikuppam, the Election

Petitioner could have very well produced the copy of Part-I of Form 17-C given to her Polling Booth Agents, but that was not to be so.

In his evidence, PW5-Returning Officer has clearly stated that M.O.5 Control Unit No. D 11920 was actually used in Polling Station No. 13,

Chinnapallikuppam and in M.O.5 in the first pink tag on the top, three signatures of Polling Booth Agents are found and the signatures of Polling

Booth Agents found in the first pink tag on M.O.5 [D11920] tallies with the signatures of Polling Booth Agents in Part-I of Ex.P5 Form 17-C. It

was suggested to PW5 that Part-I of Form 17-C [Ex.P5] was prepared by the Returning Officer himself without any signature of Polling Booth

Agents. But to substantiate the said suggestion, the Election Petitioner had not chosen to examine her Polling Booth Agents of No. 13,

Chinnapallikuppam.

In his evidence, PW4-Parthasarathy has stated that upto 12.30 P.M. the votes polled in the EVM pertaining to No. 13, Chinnapallikuppam

was not counted and that when the EVM of No. 13, Chinnapallikuppam was brought and when the result button was pressed, it showed ""000"".

PW3-Prahalathan has stated that EVM pertaining to No. 8, Gururajapalayam was brought to the counting Table No. 10 (in which he was the

Counting Agent) and number of votes polled against each candidate were counted.

From the evidence of PW5, it is made clear that the EVM pertaining to No. 13, Chinnapallikuppam was counted in Table No. 10 in the

morning itself. As pointed out earlier, Part-I of Ex.P5 [Form 17-C] contains Control Unit No. D11920. Part-II of Form 17-C contains votes

polled against each candidate and the total number of votes polled as stated in Part-I. It is pertinent to note that in Part-II of Form 17-C [Ex.P5],

PW3 Counting Agent of Election Petitioner has signed as Counting Agent. But during his evidence, PW3 has denied his signature in Ex.P5 and

PW3 has stated that in Table No. 10, only the EVM pertaining to No. 8, Gururajapalayam was counted but not No. 13, Chinnapallikuppam.

Absolutely, there is no truth in the evidence of PW3 denying his signature in Part-II of Ex.P5 Form 17-C. In my considered view, the denial of

signature in Part-II of Form 17-C [Ex.P5] is clearly an afterthought.

As pointed out earlier, after each round of counting, Part II of Form 17-C will be prepared in which the respective Counting Agents would

sign in Part-II. To discredit P.W.3''s evidence, Form 17-Cs of various Polling Stations counted in Table No. 1 to 10 were summoned. Ex.R1 to

R15 are the Part-II of Form 17-Cs pertaining to Polling Station No. 22-F, Government Boys Higher Secondary School, Pallikondan; No. 32 A

(W), Vettuvanam; No. 44, Virinjipuram; No. 55(M), Ilavampadi; No. 65, Government Boys Higher Secondary School, Anaikattu; No. 77(M),

Thattankuttai; No. 87, Kilkothur; No. 99 KG Eriyur; No. 109, Athikuppam; No. 121, Abdullapuram PUM School; No. 134 (M), Athiyur; No.

144M; No. 47/154; No. 164, PU School, Baghayam and Arcoton Kudirai, Minjurpet respectively. Except Ex.R14 From 17-C, all Form 17-Cs

from Ex.R1 to R13 and R15 and also Ex.P5 [Form 17-C of EVM counted in Table No. 10 in Round No. 1] contained the signature of PW3-

Prahalathan. On being recalled, PW3 had also admitted his signature in Form 17-Cs i.e. Exs.R1 to R13 and R15. But PW3 denies his signature in

Ex.P5. In his evidence PW5 has stated that at the time when the votes polled were entered in Ex.R14, PW3 might not have been available.

As Counting Agent of Election Petitioner in Table No. 10, PW3 has signed. Admittedly, in Exs.R1 to R13 and R15 the signature of PW3 was

obtained in Part-II of Form 17-C in the official course. In the ordinary course of conduct of official work in Part-II in Ex.P5 [Form 17-C] of No.

13, Chinnapallkuppam, the signature of PW3 must have been obtained. As per Section 114 - illustration (e) of Evidence Act, all the official and

judicial acts are presumed to have been rightly and regularly done. Presumption u/s 114 will come into aid where it is proved that the judicial or

official act has been in effect done or performed. When the signature of PW3 in Exs.R1 to R13 and R15 is admitted, the presumption arises that

Part-II of Ex.P5 Form 17-C was also performed in the official course of business, then the presumption u/s 114, illustration (e) arises. Denial of his

signature in Part-II of Ex.P5 Form 17-C is clearly an afterthought and no weight could be attached for such denial. Part-II of Ex.P5 Form 17-C

clearly shows that the votes polled in EVM pertaining to No. 13,Chinnapallikuppam was counted in the morning itself at Table No. 10.

Case of Election Petitioner is that re-polling in No. 13, Chinnapallikuppam was ordered and therefore, she and her Chief Election Agent

[PW2-N.T. Shanmugam] and their party men went to Chinnapallikuppam for re-polling. PW5-Returning Officer has categorically denied the

suggestion that there was lot of discussion about re-polling in No. 13, Chinnapallikuppam. Only the Election Commission of India has power to

order re-poll. PW5 has categorically stated that even on the date of counting itself, re-polling cannot be ordered because the Electorate have to be

informed in advance about the re-polling. When only the Election Commission of India has power to order re-polling, it is highly improbable that

PW5-Returning Officer would have contemplated about re-polling in No. 13, Chinnapallikuppam. As soon as EVM showed ""000"", they must

have noticed the mistake, since Part-I of Ex.P5 Form 17-C, 667 votes were polled in No. 13, Chinnapallikuppam after checking up with Number

of Control Unit, interchange of EVM came to light. The contention of Election Petitioner that re-polling of No. 13, Chinnapallikuppam was

contemplated/declared is not acceptable and Issue No. 4 is answered accordingly.

M.O.4 - D53208 which was intended to be kept as ""Reserve EVM"" was used for polling in No. 8, Gururajapalayam. As seen from Part-I of

Ex.P4 [Form 17-C], 1035 votes were polled in No. 8, Gururajapalayam. Since the pink tag contained label ""Reserve EVM"", even though M.O.4

was used in No. 8, Gururajapalayam as it was ""Reserve EVM"", the same was kept in the additional storage room. In his evidence, PW5 has

stated that after noticing the interchange of EVM, M.O.4 was brought and found that the seals were intact. PW5 has further stated that in Part-II

of Form 17-C in Ex.P4, Control Unit No. D53208 is written which tallies with the Control Unit number entered in Part-I of Form 17-C.

Explaining upon the circumstances under which M.O.4 EVM pertaining to No. 8, Gururajapalayam was brought for counting, PW5 has stated as

under:

...The interchange of EVMs was noticed in the afternoon and the process was going on and after taking videograph, the Reserve Control Unit No.

D53208 was brought to the counting table and the votes polled in Polling Station No. 8, Gururajapalayam was counted in the presence of all

political parties including the contesting candidates, who were present at that time. The minutes of the said process was recorded by me as the

Returning Officer. All these facts with regard to interchange of EVMs was explained to the political parties and the contesting candidates and they

have also agreed for the same and they have also signed in the minutes. Only after the minutes, the EVM Control Unit No. D53208 was brought

from the additional storage room to the counting hall. I verified and satisfied that the seal was in tact and showed to all of them and only thereafter

the votes were counted.

As per the evidence of PW5, M.O.4 EVM pertaining to No. 8, Gururajapalayam was counted only in the evening. When PW5 was asked

about the time gap from 12.00 noon to evening for counting of votes pertaining to No. 8, Gururajapalayam, PW5 has explained the time gap. PW5

has stated that he sent a report to the Chief Electoral Officer, Chennai explaining the hardship faced by him for declaring the result when Control

Unit D18543 showed ""000"" and after ascertaining the interchange of EVM, the above process was taken and another report was sent to the Chief

Electoral Officer, Chennai explaining in detail and seeking clearance for declaration of result. PW5 would further state that the Chief Electoral

Officer orally asked him to verify the Presiding Officer''s diary and Vote of Accounts in Form 17-C and pursue further. PW5 has made it clear that

interchange of EVM was explained to all the candidates and their Counting Agents and M.O.4 EVM was brought from the additional storage

room to the counting hall and counted. Out of 1035 votes polled in No. 8, Gururajapalayam, the candidates secured the votes as under:

__________________________________________________________

Sl. No. Name of the Candidate No. of votes recorded

__________________________________________________________

KUMARESAN J. 18

SIVAM C. 01

PANDURANGAN K. 391

VARALAKSHMI M. 377

VENKATESAN M. 195

KALAISELVAN V. 08

DEIVASIGAMANI B. 06

NATARAJAN T. 07

PANNERSELVAM S. 09

VEERAMANI G. 23

__________________________________________________________

Total 1035

__________________________________________________________

Total number of votes in M.O.4 Control Unit D53208 tallied with the total number of votes shown in Part-I. All the Counting Agents have not

signed in Part-II of Ex.P4 [Form 17-C] with regard to No. 8, Gururajapalayam. PW5 has stated that if any one of the Counting Agent refuses to

sign in Part-II in Form 17-C, it is not mandatory for the Returning Officer to get his signature. The non affixture of signature of other candidates

would not in any way invalidate the election.

Grievance of the Election Petitioner is that EVM pertaining to No. 8, Gururajapalayam was brought from additional storage room which would

have no security measures and bringing the EVM from the additional storage room has materially affected the election insofar as the Returned

candidate is concerned. It is the further case of Election Petitioner that No. 8, Gururajapalayam was already counted in the morning of 11.5.2006

in Table No. 10 in Round No. 1 and while so, bringing EVM from additional storage room on the ground that No. 8, Gururajapalayam was not

counted is nothing but manipulation. The contention that No. 8, Gururajapalayam was counted in the morning itself does not hold a ground. Ex.P1

is the note book maintained by PW4-Counting Agent. After each round of counting, total number of votes polled against each candidate round

wise would be written in the black board. The particulars in Page No. 32 of Ex.P1 were written by PW4 by seeing the particulars written on the

board in the counting hall. In the black board, the Returning Officer has written 3207 and 4367 as the votes polled in the first round by the Election

Petitioner and the 1st Respondent which has been noted by P.W.4. The total votes secured by each in the first round are as under:

S. 1 2 3 4 5 6 7 8 9 10

No.

1 153 41 4367 3207 486 30 55 59 58 123

As pointed out earlier, votes pertaining to No. 8, Gururajapalayam was not counted in the morning and therefore, the total number of votes polled

in the above rounds were without inclusion of No. 8, Gururajapalayam.

In her evidence, PW1 herself has stated that the total votes polled by her in the first round excluding the votes polled in No. 8,

Gururajapalayam and No. 13, Chinnapallikuppam will be 3013. To that if 377 votes polled in her favour in No. 8, Gururajapalayam are added, it

will be only 3390 [3013+377]. Whereas in Page 32 of Ex.P1, PW4-Parthasarathy, Counting Agent of PW1 noted it as 3207. 3207 votes will

come only if 194 votes polled by the Election Petitioner in No. 13, Chinnapallikuppam are added to 3013 (3013 + 194 = 3207). This is the same

case with the votes polled by the first Respondent also. As pointed out earlier, the votes 3207 and 4367 polled in the first round will come only if

the votes polled in No. 13, Chinnapallikuppam are added and not the votes polled in No. 8, Gururajapalayam, because No. 8, Gururajapalayam

was not counted in the morning; but was counted in the evening by the Returning Officer himself. As rightly stated by PW5-Returning Officer, that

is why in Form 17-C of No. 8, Gururajapalayam [Ex.P4], the signature of PW3-Prahalathan is not available. It is pertinent to note that PW3 has

not produced the note book that was maintained by him during counting. Had he produced the note book, it would have been made clear that it

was No. 13, Chinnapallikuppam EVM [MO5] that was counted in Table No. 10 in the first round.

Mere allegation that EVM pertaining to No. 13, Chinnapallikuppam was erased is unsustainable. Even though the EVM pertaining to No. 8,

Gururajapalayam was kept in the additional storage room, when it was brought from the additional storage room, the seals were found intact.

Since all safety features are available in the EVM, there is no question of tampering the votes polled and recorded in the Controlling Unit.

Interchange of EVM has not in any way materially affected the election and Issue Nos. 1 and 4 (re-cast) and Additional Issue Nos. 1 to 3 are

answered against the Election Petitioner.

Issue No. 5: Election Petitioner has not established reasonable ground or made it to declare the election of the 1st Respondent as void. In the

light of the above said discussions in the aforesaid Issues, the Election Petitioner is not entitled for any declaration as sought for by her.

In the result, the Election Petition is dismissed. Consequently, connected O.A. is also dismissed. However, there is no order as to costs.