Sivakumar @ J.K. Ritheesh vs V. Sathiamoorthy and Others

K. Chandru, J.—The applicant herein is the first Respondent in the election petition and also a candidate who was declared elected from

Ramanathapuram Parliamentary Constituency. The election petition was presented by the first Respondent under Sections 80 to 84, 100(1)(b),

10(1)(d)(i)(ii), (iii), (iv), 123 (1), (2), (3) (3-A) (4), 135(1), 135-A(e), 65(1) of the Representation of People Act, 1951 and Rule 54A of the

Conduct of Election Rules read with Rule 2 of Madras High Court Election Petition Rules, 1967. The election petition was presented on

12.6.2009 by the first Respondent. After scrutiny of papers, the matter was allotted to this Court by the Hon''ble Chief Justice.

When the matter came up on 31.8.2009, this Court admitted the election petition and ordered notice to the Respondents. All parties were

served either through the Court or by substituted service. Accordingly, the first Respondent, elected candidate, had entered appearance. He had

filed the present Application No. 6915 of 2009 under Order 14 Rule 8 of O.S. Rules read with Order 6 Rule 16 of CPC to strike off the election

petition No. 1 of 2009 filed by the first Respondent. On notice on this application, a counter affidavit, dated 18.1.2010 was filed by the first

Respondent/Original election Petitioner. The 13th Respondent appearing as party-in-person had filed a counter affidavit, dated 1.3.2010.

Arguments were heard on various dates. The application was reserved for orders on 27.4.2010. Subsequently, the matter was reposted on

10.2.2011 for certain clarifications. After getting clarifications from the parties, it was again adjourned for delivering the orders in the application.

Before proceeding to deal with the allegations made in the application, it is necessary to set out the allegations made in the original Election

Petition. The admitted facts in the election petition are as follows:

The election to the 15th Lok Sabha was notified by the Election Commission of India on 23.3.2009. Insofar as the State of Tamil Nadu was

concerned, the date of polling was notified on 13.5.2009 and declaration of results was to be made on 16.5.2009. Unlike previous polling,

elections were held by exercising franchise through Electronic Voting Machines (for short EVM). In the election held to the Ramanathapuram

constituency, the applicant was declared as returned candidate by the 15th Respondent under the 17th Respondent. It is claimed that the first

Respondent / the original election Petitioner is an advocate by profession. He was brought into the politics by the former late Chief Minister M.G.

Ramachandran. He was a member of the Tamil Nadu legislative assembly for the year 1980-1984 for the first term and during 1991-96 for the

second term. He was the Chairman of the Panchayat Union Council at Kadaladi during 1986-1990. His worth was noted by the then Chief

Minister Selvi J. Jayalalitha. He was inducted as a Minister in her cabinet holding the Commercial Tax Department. He was elected as a Member

of Parliament during the year 1998-99. He was also the District Secretary of the AIDAMK party from January, 2009 and held the office of the

State Organizing Secretary and State Headquarters Secretary on earlier occasions.

He had contested in the election as an official candidate of the AIADMK. The first Respondent was hopeful that being a strong candidate, he

would get elected in the election. The pre-poll predictions also clearly indicated that he would get elected in the election. Further, for spending

money towards election propaganda, a ceiling has been fixed. The applicant had contested the election for the same constituency being an official

candidate of Dravida Munnetra Kazhagam (DMK). He was a novice to politics. He had also occasionally acted in some Tamil films. It is the stand

of the first Respondent that the applicant and his party had spent more than.25 crores in the Ramanathapuram constituency alone and had indulged

in large scale of corruption. The police were mute spectators to the large scale of corruption indulged by the applicant for securing votes. They had

registered cases on complaints selectively. The complaints lodged by the Village Administrative Officers were not acted upon. The first complaint

was made to the knowledge of the first Respondent on 4.5.2009 by one Karumalai, VAO, Nainarkoil against one Diwakar, the Panchayat Union

Secretary of the DMK party and the son of Suba Thangavelan, who is the Minister in the State Cabinet. The case was registered u/s 171-E read

with 188 IPC in Crime No. 41 of 2009 on the file of the Nainarkoil Police Station. The said case was not investigated on account of the fact that

the accused was the son of the Minister Suba Thangavelan. The Minister himself was not lagging far behind his son''s activities. He had also

indulged in electoral corruption. An FIR in Crime No. 25 of 2009 was registered against him at the instance of one Subramaniam, VAO.

It was claimed that he was seen distributing money on 11.5.2009 around 10.00 a.m along with his party men. They were also distributing ?

100/- for every Aarathi taken for him by the women of that locality. The applicant himself was found on 2.5.2009 promising construction of an

Amman Temple at Ariyankottai village and sought for votes for himself and also for his party. He used his two lorries for supply of building

materials for the construction of temple. The VAO Rajendran had lodged a complaint which was registered in Crime No. 75 of 2009 on 4.5.2009

with R.S. Mangalam Police station. The registration of that complaint did not deter the applicant. On 6.5.2009 around 11.00 p.m., he had

canvassed at Peraiyur village seeking for votes and was seen distributing money to the voters. A complaint was lodged by one Muthuraman, VAO

against the applicant under Sections 188 and 171-E of IPC with the Peraiyur Police station. The corrupt practices engaged by the Minister Suba

Thangavelan and by the applicant who is an aspirant for the post of Member of Parliament has created an indelible doubt about the free poll

process. The public documents created in this regard were filed as annexures to the original election petition.

The Election Commission though was fully aware of these activities but did not put a check on their conduct. The details of corrupt practices

indulged by the applicant along with the Minister Suba Thangavelan and the members of his party were set out in paragraph 9 of the election

petition and relates to as many as 9 items. Two criminal cases in Crime No. 75 of 2009, dated 4.5.2009 registered by R.S. Mangalam Police

Station as well as Crime No. 22 of 2009, dated 7.5.2009 registered by Peraiyur Police Station related to the applicant. The first complaint related

to the construction of Ammankoil in which it was found two vehicles owned by him were used to bring sand for construction. The second case

related to the distribution of`. 100/- to those who took Arathi on 6.5.2009. According to the first Respondent/original election Petitioner, these are

all only few instances. The first Respondent had spoken to the then Chief Election Commissioner about the corrupt practices indulged by the

applicant. The Election Commissioner had recorded his statement. The FIR''s, complaints given in writing by the first Respondent and his party

men and the complaints made over phone as recorded by the Chief Election Commissions is requested to be treated as part of the election

petition.

Apart from the Election Commission, even the Superintendent of Police, Ramanathapuram was apprised of the corrupt practices in distributing

money by the applicant. It is stated that on 13.5.2009, i.e., on the date of election, one Rajan of DMK party was apprehended near Taluk Office

Road in Kamudhi Town while distributing money and he was handed over to the police along with the cash balance of.1 lakh. Soon after his arrest.

Minister Suba Thangavelan had arrived at the police station and ensured that no case was registered regarding the incident. Even the cash that was

entrusted to the police was taken away by him. After public protest raised by one Muthuramalingam, the Inspector of Police had issued a CSR,

dated 13.5.2009. A serious case of violation of code of conduct can be seen from the said complaint. Likewise, in front of Paramakudi

Emaneswaram Middle School, one Thangavel of DMK was distributing money near polling booth. He was apprehended and the same was

reported in the newspaper ""Dinamalar"". But, no case was registered. On 9.5.2009, the applicant was found distributing money to the voters in

Aranthangi. That incident was also videographed. But, the police bungled the show. The incident was also reported in all newspapers. Another

Cabinet Minsiter Thangam Thennarasu during May, 2009 on the eve of election, undertook a tour to various places canvassing for his party for the

election and was found distributing money to the villagers in the name of payment of wages received under the Central Government Schemes. This

was nothing but misuse of the Government machinery. The applicant had portrayed that he had taken care of the family of late Immanuel who was

responsible for prosecuting Muthuramalinga Thevar. But, however, the prosecution had ended in acquittal. It is further claimed that the applicant by

distributing handbills informed that his party was instrumental in protecting the cause of the members belonging to Immanuel''s clan and had sought

for their votes for the DMK party. Pamphlets were also issued in the name of the kin of late Immanuel. The language in that pamphlet was in bad

taste and had created mutual hatred and caused tension between different castes and communities.

The VAO of that village and one Mr. Haridoss, a practicing Lawyer had lodged a complaint about the offer made by the applicant for

construction of places of worship. The construction materials, i.e., bricks and sand were supplied by the vehicles marked as ""JKR"" at

Pappanandal, Mettukolai and other villages. This incident took place on 3.5.2009. Complaints were also made to the Additional Chief Election

Commissioner, Chennai through Fax messages on 12.5.2009 by Haridoss, a member of the AIADMK and a well known advocate. The

substance of the complaint was that on 11.5.2009 under the leadership of Suba Thangavelan, the DMK party men were engaged in distributing

money in Peraiyur, Mudukulathoor during night time which had resulted in a complaint being lodged. Similarly, the DMK party men had distributed

money to all Self Help Groups in Ramanathapuram District. On 12.5.2009 around 12.00 p.m. at Sowrashtra colony in Paramakudi-Mudukulathur

Salai, a white Scorpio vehicle with registration No. TN 65 E 1001 was employed by the DMK party for distribution of booth slips and money.

The Poll observer Mr. Rajesh Vajera was informed of these incidents, but no action was taken. At Narikudi, Mr. Thangam Thennarasu, a Cabinet

Minister had distributed funds to the voters. The distribution of funds was rampant at Kadaladi and Sayalkudi. At Kadaladi, Mr. Ponraj, a former

Town secretary of DMK was found distributing funds in the Pillaimar Street. He was apprehended and was handed over to the Kadaladi Police.

But, the police did not register any case against him.

It was further claimed that intimidation was made to the rival party members from campaigning in the elections stating that criminal complaints

will be lodged against them. False cases were registered with a view to prevent the people owing allegiance to opposition parties from voting in the

election. The first Respondent/original election Petitioner was forced to file a Criminal O.P. No. 2961 of 2009 for securing anticipatory bail in

Crime No. 100 of 2009 and he got bail on 13.5.2009. Another false case was registered at the instance of the ruling party persons. The applicant

was also found distributing tea cups to various tea shops with the poll symbol of his party ""Rising Sun"" printed on it. He had also sought for votes

by distributing hand fan, caps, T-shirts, dhoties and sarees. For canvassing votes for his candidature, women self help groups were distributed with

funds. For each assembly constituency, there was not less than 1500 of such groups. The amount distributed to each group ranged from.2,000/-

to.5,000/-. A complaint was also lodged in violation of election conduct rules. After notification of the election, nearly 250 village persons were

engaged in each panchayat as workers under the NREGA scheme. In the year 2008, only less number of people were engaged comparing to the

engagement of such persons during the election time. On 4.5.2009, the VAO had reported that the applicant and one Diwakar the Union secretary

of DMK had convened workers'' meeting and sumptuously fed them with Biriyani and other items. Though it was arranged as a cadre meeting, but

voters from neighbouring villages were treated with biriyani feast and votes were canvassed for his party. Likewise, feasts were arranged for the

voters throughout the constituency. A FIR was registered in the R.S. Mangalam Police Station in Crime No. 75 of 2009.

10, It was further claimed that on 9.5.2009, (just four days before the election), a complaint was lodged by one Pandimurugan in Kalkurichi police

station in Crime No. 92 of 2009 complaining of the branch secretary of DMK along with his men including four teachers and a Central

Government servant were engaged in distributing of funnds in front of the house of one Arumugham. They were apprehended and handed over to

the police. Likewise, on 10.5.2009, DMK men were found in the vehicle bearing registration No. TN 72/C 9588 distributing money at

Thiruchuzhi. A complaint to that effect was lodged at Narikudi in Crime No. 104 of 2009. The Code of Conduct of election specifically prohibits

the misuse of Government/Municipal properties for the purposes of advertisements. The applicant along with Diwakar, son of Suba Thangavelan

and the members of ruling party had misused the Government properties for advertisement and gathered votes for DMK. A complaint was lodged

in Crime No. 46 of 2009 at Nainarkoil police station on 11.5.2009 by the VAO for placing placards, digital banners and advertisement boards.

The expenditure incurred in this regard had crossed the permissible limit of expenditure by several crores. The corrupt practices indulged by the

applicant included bribing of voters, intimidation of members of the rival political parties, canvassing within 100 meters of the polling booth, holding

of meetings within 48 hours of the date for poll and distributing of money on the date of poll even in areas which were in close proximity to the

polling booth.

It was further claimed that Minister Suba Thangavelan had misused the official machinery. Anwar Raja, a former Minister and Udayakumar,

agent of the first Respondent and State Student wing secretary have lodged a complaint on 4.5.2009 regarding distribution of money between 6.30

and 9.00 p.m. A further complaint was also lodged to the Election Commission on 10.5.2009. Series of complaints were given on 2.5.2009 to

13.5.2009. Telephones and cell phones of the voters were used to canvass votes for DMK. Canvassing through telephone was not subjected to

any time period.

Apart from these allegations, it was further claimed that the applicant was born in Kandy, Srilanka. His parents were the residents of Srilanka.

It was not clear as to how he had secured Indian citizenship. He had made a misrepresentation as if he was a citizen of India. He is not entitled to

stand or contest in the election to become a member of Parliament. He had given false status in the affidavit filed before the election officer at the

time of filing of his nomination.

Thereafter, it was further submitted that the Electronic Voting Machines (EVM) were unreliable and there was no possibility of finding out the

actual votes polled and to whom it was voted. The cross verification was impossible. The entire operation was done by a micro chip. It was

possible to corrupt and manipulate the chip. In many polling booths in the Ramanathapuram constituency, there were complaints that on the button

being pressed in favour of the first Respondent, votes were transferred in favour of the applicant. In the manual voting system, verification was

possible. But in the EVM machines, no such verification was possible. Substantial electorate in the Ramanathapuram constituency were illiterates.

They were not fully conversant in pressing buttons in the EVM machines. In one of the booth at Rameswaram, when the first voter entered to

tender his vote, he found that there were already 64 votes were entered even before his entry. The first Respondent is willing to substantiate the

unreliability of EVM machines.

It was further claimed that on 13.5.2009, it was disclosed in the media that the total votes polled in Ramanathapuram Constituency was 64.5%

after closure. But, next day''s announcement showed that it was 68.5%. These figures were given by the Election Commission itself thereby giving

rise to considerable doubt that election was not properly conducted. The control boxes attached to the EV Ms were kept away from the polling

agents thereby finding it difficult to know whether they were tampered or not. None of the candidates or agents were allowed to physically verity

the fate of EV Ms which were entrusted to the State officials. Even in the counting hall, there were 12 tables in each hall with one A.R.O. per table.

The agents were allowed to monitor the 12 tables, but were not permitted to monitor the ARO''s table where all the votes from the 12 tables were

pooled and counted. The agents were also not allowed to cross check the individual votes. The Election Commission was bound to establish the

credibility of the instruments employed at the time of election. The para-military force (CRP) which were engaged to guard the polling stations

were not found anywhere near the polling station which led distribution of funds on the election day by Rajan Nadar. The public had apprehended

and handed over him to the police. The first Respondent had also spoken to Mr. Naresh Gupta and lodged a complaint informing that a sum of.5

Crores was kept in the house of Mudukuluthur DMK poll agent Murugavel for distribution to the voters in Ramanathapuram. The complaint was

recorded in his phone and he was assured that appropriate action will be taken.

It was also submitted by the first Respondent that complaints were given by M. Kanagaraj, S. Naganathan, V. Muthu, Kannan, Muniyandi,

Karuppiah, Vellaiyan, Sundaramoorthy to Anwar Raja, former Minister belonging to AIADMK and to the first Respondent. They had spoken

about the distribution of funds for securing votes. Likewise, Rajendran, Muniyandi and Karuppiah, responsible officer bearers of AIADMK party

also drew attention of the first Respondent to the electoral abuses indulged by the applicant and the amounts distributed in various areas were

disclosed. The distribution of money by the applicant and his party men were videographed and it was handed over to the Revenue Divisional

Officer/Assistant Returning Officer, Aranthangi. A copy of the compact disc was produced for appreciation by this Court.

Finally, it was submitted that the first Respondent had polled more votes than the applicant. Because of corrupt practices indulged by the

applicant, he had lost in the election. The fifth Respondent had informed that the first Respondent had polled 2,25,030 votes. In the event of

applicant''s election being set aside, it was further claimed that the first Respondent should be declared elected for Ramanathapuram constituency.

It is with these allegations, he had sought for the declaration of the applicant''s election from Ramanathapuram Constituency in the election held on

13.5.2009 as null and void and for declaration that the first Respondent as the duly elected member of Member of Parliament from the

Ramanathapuram constituency and cost for the petition. In support of these allegations, the first Respondent had enclosed 42 documents along

with the election petition. The 43rd item was a copy of compact disc to which a reference was made in paragraph 34 of the Original Election

Petition.

The applicant did not file any counter in the main Election Petition. On the other hand, he had filed the present application No. 6915 of 2009

seeking for striking off the Election Petition No. 1 of 2009 filed by the first Respondent as not maintainable in law, it is vague and an abuse of the

process of law.

In the application filed in support of the application, he had stated that he was representing the DMK party and had contested for election on

13.5.2009. He was declared elected with a winning margin of 69,915 votes. He had submitted that the election petition filed by the first

Respondent was against the provision of the Representation of People Act, 1951 (for short RP Act). u/s 80 of the RP Act, no election can be

called in question except by an election petition presented in accordance with the provisions of Part II of the Act. u/s 80A, it can be tried only by a

Court having jurisdiction to try an election petition and it shall be the High Court. Such jurisdiction shall be exercised ordinarily by a single Judge of

the High Court. The Chief Justice shall from time to time assign one or more judges for this purpose. The election petition will have to be presented

within 45 days from the date of election of the returned candidate as per Section 81 of the Act. The term ""High Court"" has been defined u/s 79(e)

of the RP Act to mean that the High Court within the local limits on whose jurisdiction the election to which the election petition relates, has been

held. In the present case, since the election related to the Ramanathapuram Constituency, it falls within the jurisdiction of Madurai Bench of this

High Court. After formation of the Madurai Bench pursuant to the Presidential notification issued with effect from 24.7.2004 and elections having

taken took place on 13.5.2009 and results were declared on 16.5.2009, the jurisdiction of the present election petition vest with the Madurai

Bench of this Court. Only if it is presented to that Court, it can be entertained. Since the first Respondent had filed the election petition before the

Principal Bench, the election petition filed by the first Respondent deserves to be rejected on this short ground.

It was further stated that election petition was not accompanied by the affidavit in the prescribed format as mandatorily required by the proviso

to Section 83(1) of the Act. Hence it deserves to be rejected. Without prejudice to these submissions, it was further contended that the allegation

of corrupt practices are vague and bereft of material facts and did not satisfy the requirement of Section 83. On account of vague nature of

allegations and lack of material facts, no cause of action arose for entertaining the election petition. The corrupt practices alleged to have been

committed by the applicant were not set out with full particulars, but were narrated in a casual manner. They lack in substance and do not satisfy

the requirement of Section 83. The corrupt practices alleged to have been committed were not precisely stated and are not supported by any

affidavit which are mandatorily required under the proviso to Section 83.

With reference to improper acceptance of his nomination alleged, the applicant had stated that he is an Indian citizen. It is admitted even by the

first Respondent and he himself never raised any objection at the time of scrutiny of nomination.

There are no averments in the petition regarding the corrupt practices in terms of Section 100(1)(d)(iii) or (d)(iv). With reference to Section

135(1) and 135A, absolutely there are no other alelgations. Section 65(1) of the RP Act is not attracted in the present case. The allegation

pertaining to the use of EVM machines were based on assumptions and presumptions. No complaint was made by the first Respondent at the time

of election. The deployment of EVM machines is part of the policy decision of the Election Commission. It has been used throughout India. The

averments made in paragraph 30 of the election petition was bereft of material facts. The averment that the first Respondent got more votes than

the applicant was also bereft of material particulars. The averments that the electorate were induced by gratification with gift materials and undue

influence was exercised directly and the same interfered with the electoral rights of the people were all vague and bereft of material facts. The

election petition is liable to be rejected on the ground of want of jurisdiction, non filing of the affidavit in support of the allegations and other corrupt

practices as well as on grounds of lack of material facts. By the nature of pleadings made in the election petition, there is no cause of action arose

for entertaining the petition. The election petition is nothing but an abuse of the process of law. Therefore, it was prayed for striking off the election

petition.

On notice from this application, the first Respondent who is the original election Petitioner filed a counter affidavit dated 18.1.2010 and had

stated that the application is not maintainable. It is not necessary to file a petition in the Madurai Bench of Madras High Court, since the Madurai

Bench has not been conferred with any original jurisdiction A complaint made against the applicant was made even by the Government officials.

Paragraphs 6 to 16 clearly indicate serious charges to be answered by the applicant. When allegations were substantiated with records, it is not

open to the applicant to dillydally the matter.

The allegations made in paragraph 26 in the petition is something within the knowledge of the applicant and no evidence can be let in before

commencement of trial. At the appropriate stage, the applicant would be confronted with records both relating to the place of his birth as well as

his citizenship.

In paragraphs 11, 12 and 13 in the application, the allegations made are meaningless. The applicant is not an expert on EVM. It is unsafe to

use such machines. It is the duty of the applicant to establish that the charges levelled against him by the original election Petitioner were false. The

counsel also submitted that they had filed an affidavit supporting the allegations of corrupt practices raised in the Election Petition.

The 13th Respondent appearing in party in person in his counter affidavit, dated 1.3.2010 had contended that the presentation of the petition

before the Principal Bench was valid. The Madhya Pradesh High Court in Devendra Nath Gupta v. Returning Officer had held that improper

presentation of the election petition before the appropriate Bench was not valid and dismissed the OP as time barred. The Supreme Court had

upheld the decision of the High Court. Section 86 of the R.P. Act empowers the High Courts to dismiss an election petition at the threshold if it

does not comply with the provisions of Sections 81, 82 or 117. Once it is scrutinized by the ministerial act, there is no scope for further enquiry u/s

86 to ascertain the deficiencies in an election petition. Therefore, he prayed for dismissing the application and for proceeding with further trial on

the Election Petition.

From the averments made in the application for striking off the election petition and the counter affidavits filed by the original election Petitioner

as well as by the 13th Respondent, the following issues arise for consideration by this Court:

(1) Was the Election Petition properly presented before this Court ?

(2) Was the introduction of Electronic Voting Machine (EVM) vitiated the election process?

(3) Whether the allegation that the applicant is not an Indian Citizen and therefore disqualified from contesting election can be accepted?

(4) Whether a copy of the Compact Disk produced as item No. 3 filed along with the Election Petition can be received as material evidence?

(5) Whether the application filed for rejecting the Election Petition outright even at the threshold without a trial is justified?

Issue No. 1: Was the Election Petition properly presented before this Court?

27.1. Mr. AR.L. Sundaresan, the learned senior counsel appearing for the applicant first submitted that the first Respondent by presenting the

Election Petition to the Assistant Registrar (O.S.-I) of the Principal Bench was not valid as the cause of action for filing the petition arose under the

exclusive jurisdiction of the Madurai Bench of the Madras High Court. The argument that the Madurai Bench is not clothed with a Original

Jurisdiction is immaterial.

27.2 In this context, he referred to a judgment of the Supreme Court in Sri Nasiruddin Vs. State Transport Appellate Tribunal, and referred to the

following passage found in paragraph 38, which reads as follows:

...the expression ""cause of action"" with regard to a civil matters means that it should be left to the litigant to institute cases at Lucknow Bench or

at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within

Oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then

Allahabad will have jurisdiction.

27.3 He further referred to the judgment of the Supreme Court in U.P. Rashtriya Chinni Mills Adhikari Parishad, Lucknow Vs. State of U.P. and

others, . Reliance was placed on the following passages found in paragraphs 14 and 16 which are as follows at p. 96 of MLJ:

While reaching the above conclusion this Court kept in view the plain language of Clause 14 of the Amalgamation Order. No provision of the

CPC was noticed, referred to or taken into consideration directly or indirectly. The territorial jurisdiction of a Court and the ""cause of action"" are

interlinked. To decide the question of territorial jurisdiction it is necessary to find out the place where the ""cause of action"" arose. We, with respect,

reiterate that the law laid down by a four-Judge Bench of this Court in Nasiruddin v. STAT (supra) holds good even today despite the

incorporation of an Explanation to Section 141 to the Code of Civil Procedure.

16...... It is not disputed that in the present case the order/notification and the advertisement were issued by the State Government at Lucknow.

Without there being an order/notification by the Government there could be no cause of action at all. The Petitioner got aggrieved only from the

order/notification which ''arose'' from Lucknow. The grievance of the Petitioner ''arose'' at Lucknow which is within the Oudh area and as such on

the plain reading of the relevant provisions of Clause 14 of the Amalgamation Order, the Bench at Lucknow had the jurisdiction to deal with the

matter.

27.4 The learned senior counsel then referred to the judgment of the Supreme Court in Rajasthan High Court Advocates ''Assn. v. Union of India

AIR 2001 SC 416 : (2001) 2 SCC 294 : (2000) MLJ 57 and quoted the following passages found in paragraphs 17 and 18 which are as follows:

17...... The Chief Justice of the High Court has not been conferred with the legislative competence to define cause of action or to declare where it

would be deemed to have arisen so as to lay down artificial or deeming test for determining territorial jurisdiction over an individual case or class of

cases. The permanent Bench at Jaipur has been established by the Presidential Order issued under Sub-section (2) of Section 51 of the Act. The

territorial jurisdiction of the permanent Bench at Jaipur is to be exercised in respect of the cases arising in the specified districts. Whether the case

arises from one of the specified districts or not so as to determine the jurisdictional competence to hear by reference to territory bifurcated

between the principal seat and the Bench seat, shall be an issue to be decided in an individual case by the Judge or Judges hearing the matter if a

question may arise in that regard. The impugned explanation appended to the order of the Chief Justice dated 23.12.1976 runs counter to the

Presidential Order and in a sense it is an inroad into the jurisdiction of the Judges hearing a particular case or cases, pre-empting a decision to be

given in the facts of individual case whether it can be said to have arisen in the territory of a particular district. The High Court is right in taking the

view which it has done.

18..... The cases are to be heard accordingly, unless the Chief Justice may exercise in his discretion the power vested in him by the proviso to para

2 of the Presidential Order. Clauses (1) and (2) of Article 226 of the Constitution provide how territorial jurisdiction shall be exercised by any High

Court. Although the said clauses do not deal with principal seat or permanent Bench of any High Court but in our opinion, there is no reason why

the principle underlying thereunder cannot be applied to the functioning of the bifurcated territorial jurisdiction between the principal seat and

permanent Bench seat of any High Court. In case of a dispute arising whether an individual case or cases should be filed and heard at Jodhpur or

Jaipur, the same has to be found out by applying the test -- from which district the case arises, that is, in which district the cause of action can be

said to have arisen and then exercising the jurisdiction under Article 226 of the Constitution.

27.5 The learned senior counsel further referred to a decision of this Court in K. Kavitha and Ors. v. Subramanian @ V.S. Mani and Ors. (2007)

5 MLJ 417 : 2007 (5) CTC 707 and referred to the following passages found in paragraphs 16 and 24 which are as follows at p. 421 of MLJ:

A notification, similar to be one issued in case of establishment of Permanent Bench of Madras High Court at Madurai, had been issued in case

of Rajasthan High Court with exactly similar proviso giving a discretionary power to the Chief Justice to order any case or class of cases arising

within the districts allotted to the Permanent Bench of Jaipur to be heard at Jodhpur. A similar issue arose before the Honourable Supreme Court

in respect of the jurisdiction of the Principal Bench, High Court of Rajasthan at Jodhpur and its Permanent Bench at Jaipur. The Supreme Court in

clear and unambiguous terms held that the establishment of a Permanent Bench at Jaipur with powers to exercise jurisdiction over the districts

allotted to it, had effected a bifurcation of the State for the purpose of exercise of jurisdiction by the said Benches of Rajasthan High Court, with

the only exception that the Chief Justice of the said High Court was given a discretionary power to direct that any case or class of cases arising in

any of the districts within the territorial jurisdiction of the Permanent Bench at Jaipur shall be heard at Jodhpur.

On the other hand, I am of the considered view that the Principal Bench at Chennai and the Permanent Bench at Madurai shall be construed as

separate, for the practical purpose of exercise of jurisdiction, even though the Judges are interchangeable at the discretion of the Chief Justice. The

only exception is the discretion conferred upon the Chief Justice to direct any case or class of cases arising within the jurisdiction of Permanent

Bench at Madurai to be heard at Chennai. This view alone will be in consonance with the proposition enunciated by the Supreme Court in the

cases discussed above. Therefore, the first contention raised by the learned Counsel for the Petitioners is hereby rejected.

27.6 Therefore, the learned senior counsel contended that inasmuch as the Election Petition was presented to the Original Side of the Principal

Bench, it ought not to have been acted upon and should have been rejected on the ground of improper presentation. Since Ramanathapuram

District comes within the Madurai Bench of Madras High Court, it ought to have been presented only before the Madurai Bench. No doubt, after

such presentation, the Hon''ble Chief Justice could have allotted the matter to any of the Judges of this Court whether sitting at Madurai Bench or

at Chennai. But, when the cause of action arose within the Madurai Bench of Madras High Court, the Election Petition should have been presented

only before the Madurai Bench. On this ground, the Election Petition is liable to be rejected for improper reception.

27.7 Before going into the contentions raised by the Respondents, it is necessary to refer to the relevant provisions found in Chapter II of the

Representations of the People Act relating to the presentation of the Election Petition. It is necessary to refer to Sections 80, 80-A and 81 of the

R.P. Act, which are as follows:

Election petitions.--''No election shall be called in question except by an election petition presented in accordance with the provisions of this

Part.

80-A. High Court to try election petitions.--(1) The Court having jurisdiction to try an election petition shall be the High Court.

(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or

more Judges for that purpose:

Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.

(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the

place of seat of the High Court.

Presentation of petitions.--(1) An election petition calling in question any election may be presented on one or more of the grounds specified in

Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but

not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their

election are different, the later of those two dates.

27.8 It is also necessary to see the relevant rules framed by the High Court. This Court by virtue of the power exercisable under Article 225 read

with Letters Patent and Section 80-A of the R.P. Act, had framed Rules of the Madras High Court - Election Petitions, 1967. Rule 7 reads as

follows:

Every Election Petition shall be presented by the Petitioner before the II Assistant Registrar, Original Side, High Court or in his absence, before

such Officer of Court, as the Registrar of the High Court may direct.

In this case, the election petition was presented before the designated authority as set out in the rule.

27.9 In this context, it is necessary to refer to a judgment of the Allahabad High Court in Nawab Khan Vs. Vishwanath Shastri, . Though Section

81 talks about presenting of an Election Petition to the High Court, it does not mean that the Chief Justice and the entire body of the Judges should

receive such a petition. The High Court can frame convenient rules for the reception of the petition and such a rule cannot be held to be vitiated.

Therefore, it is necessary to refer to the following passages found in paragraphs 6, 7 and 10 of the said judgment, which are as follows:

6....... From the very circumstance that the High Court is a large body which cannot sit in full strength now and then only to perform ministerial act,

it is imperative that roles regulating ministerial duties of routine nature must be framed to further the object of the statute. The framers of the

Constitution or the Legislature might not have envisaged giving priority to the ministerial task over the judicial task of the High Court. I am,

therefore, of the firm view that such a wooden interpretation as suggested by Sri Jain, cannot be given to Section 81. The words ""High Court"" have

been substituted in Section 81 for the words ""Election Commission"" by Act No. 47 of 1961. Though election petition is to be presented to the

High Court institutionally but that does not mean that ministerial act of receiving election petition has to be performed necessarioy by the High

Court consisting of a Chief Justice and companion Judges. In the High Court not only election petitions are presented but several other

proceedings equally important, namely, appeal, revision, reference, writ petition etc. are instituted. There seems to be no good reason for the

Parliament to make a special provision for the presentation of an election petition only. Whereas most of the other proceedings are instituted in the

Registry, presentation of an election petition literally to the Chief Justice and to the entire body of Judges is neither expedient nor necessary, rather

presentation of an election petition to the Registrar of the High Court will be more convenient, practicable and feasible. Since no special purpose

will be served by presenting an election petition to the Chief Justice and the entire body of his colleagues, it is difficult to accept the contention of

Sri Jain that presentation of the instant petition to the Registrar under Rule 3, Chapter XV-A of the Rules is vitiated.

7..... When no manner for presenting an election petition to the High Court is prescribed by the sttute or the rules framed thereunder then it is open

to the High Court to frame appropriate rules to discharge its constitutional and statutory duty, namely, trial of the election petitions filed before it by

election Petitioners. Once an election petition is brought to the High Court, it cannot refuse to entertain the same on the ground that no procedure

for presenting them before it has been prescribed by the appropriate Legislature. An election petition can be presented only to the High Court and,

therefore, it is for High Court to regulate the presentation and trial of the election petition.

10..... The power to frame rules can be traced to Article 235 of the Constitution which provides that control over the District Court and Courts

subordinate thereto, shall be vested in the High Court. The Supreme Court held that power conferred by Article 235 of the Constitution on the

High Court can be exercised only by framing rules for regulating the manner in which the control vested in it, may be exercised. So the rule making

power is embedded in the power conferred by the Constitution on any authority to do something. In the case in hand, a conjoint reading of Article

329(b) of the Constitution, Section 80 and Section 81 of the Act clearly points out that election petitions presented to the High Court have to be

tried thereby. When power to hold trial has been conferred on the High Court, power to make regulatory provisions is incidental to that power

and, therefore, apart from Article 225, the power to make rules under Chapter XV-A for regulating election petitions can be found to exist under

Article 329(b) of the Constitution itself and under the relevant statutory provisions.

(emphasis added)

27.10 Further, the Gauhati High Court held that the act of receiving the election petition is clerical in character and no exercise of judicial review is

contemplated in the act of presentation and its acceptance vide its judgment in Banendra Kumar Mushahary V. Md. Mohibul Hague AIR 2002

Gauhati 118. It is relevant to extract paragraph 20 of the said judgment, which reads as follows:

The above observation of the Hon''ble Supreme Court that ""this is a ministerial act"" sets at rest the controversy at hand. The function involved

in the presentation of an election petition is essentially clerical in character. No exercise of judicial power is contemplated in the act of presentation

and its acceptance. What is needed is the scrutiny of the election petition which is essentially clerical. Section 81 has been quoted hereinbefore.

There appears to be a vacuum which speaks of presentation before the High Court and not the manner of presentation. This vacuum, in my

opinion, can be filled up by the High Court in exercise of its inherent powers since the Rule in this behalf will not be in clash with any provisions of

law made by the appropriate legislature. It is for this purpose, the continuance of the Rule appears to be indispensible till appropriate legislature

provide the manner by legislation. Therefore, Rule 1 of Chapter VIII A of the Gauhati High Court Rules need not be interfered on the given back

ground.

(emphasis added)

11 While framing rules relating to dealing with the Election Petition, the High Court is not only guided by the rule framed under the R.P. Act,

but also the source of power from Article 225 and Section 129 Code of Civil Procedure. Under these provisions, the Court can frame rules

regulating the procedure to deal with the election petition. Further Section 87 of the R.P. Act itself gives power to the High Court to frame

appropriate rules. In this context, it is necessary to refer to a judgment of the Supreme Court in Kailash Vs. Nanhku and Others, , wherein similar

contentions regarding the source of power for framing rules have been dealt with. It it necessary to refer to the following passage found in

paragraph 10, which is as follows:

Section 169 of the Act confers power on the Central Government to make rules for carrying out the purposes of the Act. The Central

Government is empowered to make rules which may govern the procedure of trial of election petitions. Although this subject is not specifically

mentioned as one of the matters in Sub-section (2), which specifies the topics on which the Central Government may frame rules, however. Clause

(i) of Sub-section (2) is a residuary clause which empowers the Central Government to frame rules regarding ""any other matter required to be

prescribed by this Act"". Sub-section (1) of Section 87 of the Act also gives an indication that the statute contemplates the framing of rules under

the Act to govern the procedure of trials before the High Court, which, read with the preamble to the Act, is the source of power for making the

rules laying down the procedure for the trial of election petitions. There is no provision in the Act which empowers the High Court to frame the

rules governing the procedure of trials before the High Court. However, the High Court is not entirely powerless in the matter of framing the rules

of procedure. Article 225 of the Constitution confers powers on the High Court, inter alia, to make rules of Court for the purpose of hearing, trying

and deciding any matter lying within the jurisdiction of the High Court. The High Court can thus frame rules of procedure regarding the trial of

election petitions under Article 225 of the Constitution. This source of power emanates from the Constitution and is, therefore, very potent. Section

129 CPC is another source of power of the High Court to make rules to regulate its own procedure in the exercise of its original civil jurisdiction.

This will include election petitions also as they are tried in the original civil jurisdiction of the High Court.

(emphasis added)

27.12 In the light of the above, this Court having framed rules and the Election Petition has been presented before the designating authority of

which the Hon''ble Chief Justice had passed an order assigning the work to this Court, no exception can be taken for hearing the Election Petition.

It cannot be said that it was improperly presented before the wrong authority. As long as no other authority is specified (whether functioning in the

Principal Bench or in the Madurai Bench), there is no illegality or want of jurisdiction in hearing the petition. The objection raised by the applicant

will have to be necessarily rejected. Accordingly rejected.

Issue No. 2: Was the introduction of Electronic Voting Machine (EVM) vitiated the election process?

28.1 These allegations are made in broad terms and no details were given. The Election Commission of India had made a policy decision to

introduce the Electronic Voting Machines. It is not only used for the applicant''s constituency, but used throughout India. This issue cannot be gone

into in the absence of any material particulars showing that the EV Ms used in the applicant''s constituency were programmed in such a way that

every vote even if pressed in respect of the other candidate will result in it registering votes in favour of the applicant. Since material particulars are

lacking, such broad and vague allegations cannot be gone into in this application. Hence this allegation stands rejected.

Issue No. 3: Whether the applicant is an Indian Citizen?

29.1 Under Article 84(a) of the Constitution, only an Indian citizen can contest the election and become a Member of Parliament. Article 84(a)

reads as follows:

Qualification for membership of Parliament.- A person shall not be qualified to be chosen to fill a seat in Parliament unless he

(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation

according to the form set out for the purpose in the Third Schedule;

29.2 In paragraph 26, the original Election Petition, the first Respondent had raised the issue that the applicant is not an Indian citizen as he was

born in Kandy at Srilanka and that he had secured the Indian citizenship by making misrepresentation and also giving false status in his affidavit filed

before the Election Officer at the time of filing. This allegation was strongly denied in paragraph 10 of the application. It was stated that at the time

of filing of the affidavit, no objection was raised by the Election Officer and no particulars were given in paragraph 26 of the Election Petition with

reference to this allegation.

29.3 In answer to this averment, in paragraph 4 of the counter filed by the applicant, it is stated that it is personal to the applicant. The applicant

cannot expect evidence before commencement of trial and that at the appropriate state, he would be confronted with the records. Therefore, the

allegation made against the applicant is clearly lacks in material particulars. In the absence of the first Respondent furnishing such details in the

election petition, he cannot shift the burden on the applicant. He also cannot reserve his right only for producing such evidence at the trial stage.

29.4 Though this Court constituted as an Election Tribunal not only decides the question of corrupt practices, can even decide the question of

citizenship in considering the disqualification. But, in the absence of any material particulars, this issue raised herein is not worth postponing for a

trial. In this context, it is necessary to refer to a judgment of the Supreme Court in Hari Shankar Jain Vs. Sonia Gandhi, . The following passages

found in paragraphs 23, 24, 33 and 34 may be usefully extracted below:

Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the Petitioner

relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as

materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition

and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression ""cause of action"" has been

compendiously defined to mean every fact which it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the

judgment of Court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function

of the party 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. (See Samant N. Balkrishna v. George Fernandez, Jitendra Bahadur Singh v. Krishna Behari.) Merely quoting the words

of the Section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also

positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis this Court has held, on a conspectus of a series of

decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of

action. Failure to plead ""material facts"" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material

facts after the time-limit prescribed for filing the election petition.

It is the duty of the Court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a

cause of action. To enable a Court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and

nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can

cure basic defect in the pleadings.

Without further burdening this judgment by dealing with each and every other averment made in the two election petitions, it would suffice to

say that we have carefully read each of the two election petitions and heard each of the two election Petitioners (Appellants) in very many details

especially on the aspect of the election petitions suffering from the vice of not satisfying the mandatory requirement of pleading material facts as

required by Section 82(1)(a) of RPA, 1951 and we are satisfied that the two election petitions do not satisfy the requirement statutorily enacted

and judicially explained in umpteen number of decisions. The petitions are hopelessly vague and completely bald in the allegations made, most of

which could not possibly be within the personal knowledge of the Petitioners but still verified as ""true"" to their knowledge, without indicating the

source. Such pleadings cannot amount to disclosing any cause of action and are required to be rejected/dismissed under Order 7 Rule 11 Code of

Civil Procedure.

To sum up, we are of the opinion that a plea that a returned candidate is not a citizen of India and hence not qualified, or is disqualified for

being a candidate in the election can be raised in an election petition before the High Court in spite of the returned candidate holding a certificate of

citizenship by registration u/s 5(1)(c) of the . A plea as to constitutional validity of any law can, in appropriate cases, as dealt with hereinabove,

also be raised and heard in an election petition where it is necessary to decide the election dispute. The view of the law, stated by the learned

designated Election Judge of the High Court of Allahabad cannot be sustained. To say the least, the proposition has been very widely stated in the

impugned order of the High Court. However, in spite of answering these questions in favour of the Appellants yet the election petitions filed by

them cannot be directed to be heard and tried on merits as the bald and vague averments made in the election petitions do not satisfy the

requirement of pleading material facts within the meaning of Section 82(1)(a) of RPA, 1951 read with the requirements of Order 7 Rule 11 CPC

The decision of the High Court dismissing the two election petitions at the preliminary stage, is sustained though for reasons somewhat different

from those assigned by the High Court. The appeals are dismissed but without any order as to the costs.

(emphasis added)

29.5 The first Respondent himself has admitted that the applicant is in possession of citizenship though by misrepresentation. In such case, whether

this Court can go into the issue of his citizenship is doubtful. The Supreme Court in Thampanoor Ravi Vs. Charupara Ravi and Others, in

paragraph 12 had observed as follows:

Under Article 329(b) of the Constitution no election to a legislature shall be called in question except by an election petition presented to such

authority and in such manner as may be provided by or made by the appropriate legislature. u/s 80-A of the RP Act, the forum for adjudication of

an election petition is the High Court. The scope of this provision is considered by this Court in Upadhyaya Hargovind Devshanker v.

Dhirendrasinh Virbhadrasinhji Solanki. In that decision, the question was whether an order made on an interlocutory application in an election

petition could be the subject of a letters patent appeal. It was observed in that decision that conferment of power under the RP Act to try any

election does not amount to enlargement of the existing jurisdiction of the High Court. The jurisdiction exercisable under the RP Act is a special

jurisdiction conferred on the High Court by virtue of Article 329(b) of the Constitution. Therefore, even though the High Court may otherwise

exercise ordinary and extraordinary jurisdiction it would be difficult to envisage a situation that while trying an election petition in exercise of the

jurisdiction conferred by the RP Act it can adjudicate upon the vires of the RP Act or any rule or order made thereunder and the election petition

has to be tried in accordance with the provisions of the RP Act and thus the Court cannot entertain and pronounce upon matters which do not fall

within the ambit of Section 100 of the RP Act. Even an ordinary civil Court will not have jurisdiction to decide questions arising under insolvency

enactments; much less a special authority like the High Court when it is not invested with such power under the Insolvency Act. This Court in

Bhagwati Prasad Dixit ''Ghorewala'' v. Rajeev Gandhi reversed the view taken in Bhagwati Prasad on which reliance was placed by the

Respondent that the High Court can decide whether a person has acquired citizenship or lost citizenship. In that case, a question arose as to

whether in an election petition the High Court had jurisdiction to determine the citizenship of a person. The High Court had taken the view that

notwithstanding the statutory bar contained in Section 9(2) of the Citizenship Act that wherever a question arises as to whether, when and how a

person has acquired the citizenship of another country it shall be determined by such authority in the manner prescribed by the rules of evidence as

may be prescribed in that behalf; that since by virtue of Article 329(b) of the Constitution all questions arising in an election petition filed under the

RP Act were exclusively triable in an election petition, it had the jurisdiction to decide the question whether a candidate had ceased to be an Indian

citizen. This Court took the view that when such a question arises it would be a matter to be decided by the authority constituted under the

Citizenship Act and when no decision is given by the competent authority under the Citizenship Act, the question whether he ceased to be a citizen

of India could not be adjudicated in an election petition.

(emphasis added)

29.6 In the light of the above, the allegation that the applicant is not an Indian citizen and therefore, he is disqualified from contesting Parliament

election has to be necessarily rejected and pleadings made in this regard in paragraph 26 stand struck off.

Issue No. 4: Can the material evidence in the shape of Compact Disc produced be received?

30.1 The original election Petitioner has produced a copy of the compact disc and listed it as Serial No. 43 along with the Election Petition and

made averments regarding the same in paragraph 34 of the Election Petition. It is for the purpose of showing distribution of money by the applicant

and his party men which were videographed. A copy was handed over to the Revenue Divisional Officer-cum-Assistant Returning Officer,

Aranthangi. Even when the Election Petition came up after notice, Mr. AR.L. Sundaresan, learned senior counsel appearing for the applicant

submitted that he was not given a copy of the Compact Disc along with the election petition. He does not now the contents of the same. After

taking one or two adjournments, a copy was furnished. It must be noted that the copy that was filed before this Court itself was stated to be a

copy of the Compact Disc. But, if it is an integral part of the Election Petition, it should have been served along with the Election Petition and not

thereafter. Even the averments made in paragraph 34 does not contain precise details so as to disclose the material particulars. Therefore, in the

absence of the original election Petitioner furnishing a copy of the Compact Disc which formed an integral part of the Election Petition and also not

disclosing the material particulars found in the Compact Disc, the said Compact Disc cannot be received as an evidence. To that extent, Sl. No. 43

will have to be eschewed from being considered at the time of trial.

30.2 In this context, it is necessary to refer to a judgment of the Supreme Court in U.S. Sasidharan Vs. K. Karunakaran and Another, . The

following passages found in paragraphs 9, 10, 12, 15, 18, 28, 29, 30 and 32 may be usefully extracted below:

We are concerned with Section 81(3) which enjoins that every election petition shall be accompanied by as many copies thereof as there are

Respondents mentioned in the petition and every such copy shall be attested by the Petitioner under his own signature to be a true copy of the

petition. Section 81(3), however, does not provide for giving of copies of the documents either referred to in the election petition or filed in the

proceedings. We may now refer to Section 86(1) of the Act which reads as follows:

(1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.

Section 86(1), therefore, is a mandate on the Court to dismiss an election petition if there be a non-compliance with the provision of Section

81(3). In other words, both Section 81(3) and Section 86(1) are mandatory in nature and if there be any non-compliance with the mandatory

provision of Section 81(3), the Court will be bound to dismiss the election petition.

It is apparent from Clauses (a) and (b) of Section 83(1) that an election petition shall contain a concise statement of the material facts and also

set forth full particulars of any corrupt practice. These two requirements are also mandatory in nature. So, whenever there is an allegation of

corrupt practice, the election petition shall contain a concise statement as to the material fact on which the Petitioner relies and also must set forth

full particulars of the corrupt practice alleged by the Petitioner.

We have already referred to Section 83 relating to the contents of an election petition. The election petition shall contain a concise statement of

material facts and also set forth full particulars of any corrupt practice. The material facts or particulars relating to any corrupt practice may be

contained in a document and the election Petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the

document. When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to

the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In

other words, it forms an integral part of the election petition. Section 81(3) provides for giving a true copy of the election petition. When a

document forms an integral part of the election petition and a copy of such document is not furnished to the Respondent along with a copy of the

election petition, the copy of the election petition will not be a true copy within the meaning of Section 81(3) and, as such, the Court has to dismiss

the election petition u/s 86(1) for non-compliance with Section 81(3).

Keeping in view the above principles, let us consider whether the video cassette, as mentioned in para 5 (xi) in the election petition, forms an

integral part of the election petition. It is not disputed that a copy of the video cassette was not served on the first Respondent along with the copy

of the election petition. Indeed, the same was submitted by the Appellant in a sealed cover with an application praying for keeping the video

cassette in the sealed cover till the state of examination of witnesses. It is, therefore, apparent that not only the copy of the video cassette was not

served on the first Respondent, but also the Appellant had no intention of serving a copy of the same on the first Respondent.

The decision in Karunanidhi case fully supports the view which we take, namely, the video cassette formed an integral part of the election

petition because without a copy of the video cassette the first Respondent was not in a position to know whether the video cassette recording the

speeches of the two government servants could be said to have been used by the first Respondent for the purpose of any assistance in furtherance

of the prospects of his election. Karunanidhi case was referred to and approved in a subsequent decision of this Court in Mithilesh Kumar Pandey

v. Baidyanath Yadav.

Mr Poti has, however, urged that if the averments in para 5 (xi) of the election petition are (sic not) full and complete or, in other words, if they

do not give particulars of the corrupt practice, in that case the said averments may be struck out under the provisions of Order 6 Rule 16 of the

Code of Civil Procedure, but the entire election petition cannot be dismissed. It has already been noticed that under Clauses (a) and (b) of Section

83(1) of the Act, an election petition shall contain a concise statement of the material facts and shall set forth full particulars of any corrupt practice.

The material facts and the full particulars of corrupt practice will constitute cause of action for the election petition. If the material facts are not

supplied or full particulars of corrupt practice are not given in the election petition, as a consequence of which the election petition does not

disclose any cause of action, it is liable to be dismissed under the provision of Order 7, Rule 11 (a) of the Code of Civil Procedure. See Azhar

Hussain v. Rajiv Gandhi.

Apart from striking out the whole of the election petition when it does not disclose a cause of action, the Court can strike out any statement

which is irrelevant, scandalous or has nothing to do with the cause of action under the provision of Order 6, Rule 16 of the Code of Civil

Procedure. It is submitted by Mr Poti that if the averments in para 5 (xi) of the election petition are irrelevant or do not disclose any cause of

action, at the most the said paracan be struck out by the Court under the provision of Order 6, Rule 16 of the Code of Civil Procedure. We are

afraid, we are unable to accept the contention. We are not concerned with whether para 5 (xi) can be struck out by the Court under the provision

of Order 6, Rule 16 of the CPC as not disclosing any cause of action, but really we are concerned with the question as to whether the copy of the

election petition which has been served on the first Respondent without a copy of video cassette is a true copy of the election petition or not within

the meaning of Section 81(3) of the Act. We have come to the conclusion that the Appellant has not served on the first Respondent a true copy of

the election petition inasmuch as, admittedly, a copy of the video cassette which forms an integral part of the election petition, was not served along

with the election petition. There is, therefore, no substance in the contention which is rejected.

On the basis of the above observations, it is submitted that if para 5 (xi) of the election petition suffers from a deficiency of material particulars,

the Court has a discretion to allow the Appellant to supply the required particulars even after the expiry of limitation. The above observations have

been made in a different context and are quite inapplicable to the facts and circumstances of the instant case which, as noticed already, relate to the

question as to whether the video cassette is an integral part of the election petition and whether non-furnishing of a copy of the video cassette to the

first Respondent along with a copy of election petition is non-compliance with the mandatory provision of Section 81(3) and, as such, liable to be

dismissed u/s 86(1) of the Act. The question of exercise of discretion by the Court in permitting the Appellant to supply the particulars does not

arise at all.

(emphasis added)

30.3 U.S. Sasidharan v. K. Karunakaran (supra) came to be followed by the Supreme Court in Manohar Joshi Vs. Nitin Bhaurao Patil and

Another, . In paragraph 26 of the said judgment, it was observed as follows:

In the present case, the video cassettes, non-supply of a copy of transcript of which is urged by Shri Jethmalani to be a ground for non-

compliance of Section 81(3), were not even filed in the High Court with the election petition in the High Court. This is, therefore, not a case of

non-supply of a copy of a document which was filed along with the election petition. What was supplied to the returned candidate in the present

case, was a true copy of the election petition as it was presented in the Court without the video cassettes of which mere mention was made without

incorporating its contents by reference or enumerating it in the election petition. It is not the case of the election Petitioner that the full contents of

the video cassettes or their transcripts are incorporated by reference in the election petition in order to make the video cassettes an integral part of

the election petition, inasmuch as no video cassette was filed along with the election petition as it was presented in the High Court. Reliance is

placed by the election Petitioner on the video cassettes produced later during the trial as only evidence of the pleading in paras 32 and 33 of the

election petition. It is, therefore, clear that the contents of the video cassettes, except to the extent pleaded in paras 32 and 33 of the election

petition, cannot be treated to be incorporated by reference in the election petition as a part of the pleadings and its use is sought to be made by the

election Petitioner only as evidence of the averments contained in paras 32 and 33 of the election petition. Admittedly, a true copy of the election

petition as presented in the High Court was furnished to the returned candidate along with the notice of the election petition. There was thus no

non-compliance of Sub-section (3) of Section 81 of the R.P. Act. The election petition was, therefore, not liable to be dismissed u/s 86(1) even on

the ground of non-compliance of Section 81(3) of the R.P. Act.

(emphasis added)

In view of the above, this issue is answered against the original Election Petitioner.

Issue No. 5: Whether the application filed for rejecting the Election Petition outright even at the threshold without trial is justified?

31.1 Before proceeding to deal with this allegation, it is necessary to set out the legal provisions as well as the legal precedents in this regard.

Section 83 of the R.P. Act requires the nature of contents that should form part of the Election Petition. Section 83 of the Act reads 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.

31.2 In interpreting Section 83, in Sudarsha Avasthi Vs. Shiv Pal Singh, , the Supreme Court in paragraph 11 had observed as follows:

...As per Section 83 of the Act, it is the duty of the person who files the election petition and levels the allegation of corrupt practice to disclose

the material facts on which he relies and that he should set forth the full particulars of a corrupt practice that the Petitioner alleges, including the full

statement as far as possible disclosing the names of the parties alleged to have committed such corrupt practice and the date and place of

commission of each such practice and the same shall be filed by the Petitioner and verified in the manner as laid down in the Code of Civil

Procedure. Apart from this, he has to file an affidavit in the prescribed form in support of the allegation of such corrupt practice and he should

disclose the particulars thereof. If he wants to rely on any document then it should be annexed to the petition signed by the Petitioner and verified in

the same manner as the petition.

31.3 The petition is presented under Order 6 Rule 16 and that the provisions should apply to the Election Petition came to be considered by the

Supreme Court in Azhar Hussain Vs. Rajiv Gandhi, . In paragraphs 8 and 9, the Supreme Court had observed as follows:

...it is not disputed that the CPC (Code of Civil Procedure) applies to the trial of an election petition by virtue of Section 87 of the Act 2. Since

CPC is applicable, the Court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule

11 (a) which read thus:

Order 6, Rule 16: Striking out pleadings.--The Court may at any stage of the proceedings order to be struck out or amend any matter in any

pleading--

(a) which may be unnecessary, scandalous, frivolous or vexatious; or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or

(c) which is otherwise an abuse of the process of the Court.

Order 7, Rule 11: Rejection of plaint--The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;....

The fact that Section 83 does not find a place in Section 86 of the Act does not mean that powers under the CPC cannot be exercised.

31.4 What should be the material facts and particulars which an Election Petitioner should incorporate in his Election Petition came to be

considered by the Supreme Court in Azhar Hussain v. Rajiv Gandhi (supra) and in paragraph 14, it was observed as follows:

Before we deal with these grounds seriatim, we consider it appropriate to restate the settled position of law as it emerges from the numerous

decisions of this Court which have been cited before us in regard to the question as to what exactly is the content of the expression ""material facts

and particulars"", which the election Petitioner shall incorporate in his petition by virtue of Section 83(1) of the Act.

(1) What are material facts and particulars? Material facts are facts which if established would give the Petitioner the relief asked for. The test

required to be answered is whether the Court could have given a direct verdict in favour of the election Petitioner in case the returned candidate

had not appeared to oppose the election petition on the basis of the facts pleaded in the petition 6.

(2) In regard to the alleged corrupt practice pertaining to the assistance obtained from a government servant, the following facts are essential to

clothe the petition with a cause of action which will call for an answer from the returned candidate and must therefore be pleaded:

(a) mode of assistance;

(b) measure of assistance; and

(c) all various forms of facts pertaining to the assistance.

(3) In the context of an allegation as regards procuring, obtaining, abetting or attempting to obtain or procure the assistance of government servants

in election it is absolutely essential to plead the following:

(a) kind or form of assistance obtained or procured;

(b) in what manner the assistance was obtained or procured or attempted to be obtained or procured by the election candidate for promoting the

prospects of his election3.

(4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the manner of assistance,

the time of assistance, the persons from whom the actual and specific assistance was procured.

(5) There must also be a statement in the election petition describing the manner in which the prospects of the election was furthered and the way in

which the assistance was rendered.

(6) The election Petitioner must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was

obtained or procured, the time and date of the same, all these will have to be set out in the particulars.

31.5 The nature of pleadings that should be made in the Election Petition and in relating to the charge of corrupt practice, what should be the

material fact that should be pleaded came to be considered by the Supreme Court in Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, .

The following passages found in paragraphs 57 to 59 may be usefully reproduced below:

It is settled legal position that all ""material facts"" must be pleaded by the party in support of the case set up by him within the period of

limitation. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party

cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. The election petition must

contain a concise statement of ""material facts"" on which the Petitioner relies.

There is no definition of ""material facts"" either in the Representation of the People Act, 1951 nor in the Code of Civil Procedure. In a series of

judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as ""material facts"". All basic

and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. ""Material facts"" in

other words mean the entire bundle of facts which would constitute a complete cause of action. This Court in Harkirat Singh case tried to give

various meanings of ""material facts"". The relevant para 48 of the said judgment is reproduced as under : (SCC pp.526-27)

The expression ''material facts'' has neither been defined in the Act nor in the Code. According to the dictionary meaning, ''material'' means

''fundamental'', ''vital'', ''basic'', ''cardinal'', ''central'', ''crucial'', ''decisive'', ''essential'', ''pivotal'', ''indispensable'', ''elementary'' or ''primary''.

(Burton''s Legal Thesaurus (3rd Edn.), p. 349.) The phrase ''material facts'', therefore, may be said to be those facts upon which a party relies for

its claim or defence. In other words, ''material facts'' are facts upon which the Plaintiffs cause of action or the Defendant''s defence depends. What

particulars could be said to be ''material facts'' would depend upon the facts of each case and no rule of universal application can be laid down. It

is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause

of action or defence are material facts and must be stated in the pleading by the party.

In the context of a charge of corrupt practice, ""material facts"" would mean all basic facts constituting the ingredients of the particular corrupt

practice alleged. which the Petitioner (the Respondent herein) is bound to substantiate before he can succeed on that charge. It is also well settled

that if ""material facts"" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes

deficient.

31.6 It is in the light of these provisions, Mr. AR.L. Sundaresan, learned senior counsel contended that the allegations made against the applicant

are vague, lack in material particulars. Therefore, the entire election petition should stand rejected outrightly without trial.

31.7 Though it may be true that some of the allegations are vague and too remote to be connected with the applicant, there are enough allegations

made against the applicant which has direct bearing on the election held. If proved in trial, they may amount to corrupt practice. Not only the

Election Petition and the affidavit referred to those allegations, but documents produced, i.e., Document Nos. 2, 6, 12, 20, 22, 23, 25 and 30,

which qualifies the Election Petition for a trial in respect of those allegations. The Election Petition cannot be thrown out at the threshold without

trial. To the extent of these allegations covered by the documents referred to above, there are material facts and particulars available for being tried

in the Election Petition.

31.8 At the stage of considering the application under Order 6 Rule 16, it is unnecessary to elaborate those hearing. It is suffice to state that this

Court is satisfied that these materials require a full trial at the time of framing of the issue in the main Election Petition and recording of evidence.

Certainly, the Election Petitioner will not be allowed to let in evidence on material facts and particulars which do not satisfy the criteria stipulated

above.

31.9 In this context, it is necessary to refer to a judgment of the Supreme Court in Harkirat Singh Vs. Amrinder Singh, . In paragraph 83 of the

said judgment, it was observed as follows:

We, therefore, hold that the High Court was wrong in dismissing the election petition on the ground that material facts had not been set out in

the election petition and the election petition did not disclose a cause of action. The order passed by the High Court, therefore, deserves to be

quashed and set aside.

31.10 Subsequently, in Umesh Challiyil Vs. K.P. Rajendran, , in paragraph 20, the Supreme Court had forewarned the rejection of Election

Petition only on the basis of certain defects pointed out. Paragraph 20 reads as follows at p. 382 of MLJ:

However, in fairness whenever such defects are pointed out then the proper course for the Court is not to dismiss the petition at the threshold.

In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold.

On the contrary, after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/cure the

defects, it could result into dismissal on account of Order 6 Rule 16 or Order 7 Rule 11 CPC Though technically it cannot be dismissed u/s 86 of

the Act of 1951 but it can be rejected when the election petition is not properly constituted as required under the provisions of CPC but in the

present case we regret to record that the defects which have been pointed out in this election petition were purely cosmetic and do not go to the

root of the matter and secondly even if the Court found them of serious nature then at least the Court should have given an opportunity to the

Petitioner to rectify such defects.

31.11 The Supreme Court once again in Ram Sukh Vs. Dinesh Aggarwal, dealt with the meaning of the phrase ""material facts"". In paragraph 13,

the Supreme Court had observed as follows:

The phrase ""material facts"" has neither been defined in the Act nor in the Code and, therefore, it has been understood by the Courts in general

terms to mean the entire bundle of facts which would constitute a complete cause of action. In other words, ""material facts"" are facts upon which

the Plaintiff''s cause of action or the Defendant''s defence depends. (See Mahadeorao Sukaji Shivankar v. Ramaratan Bapu.) Broadly speaking, all

primary or basic facts which are necessary either to prove the cause of action by the Plaintiff or defence by the Defendant are ""material facts"".

Material facts are facts which, if established, would give the Petitioner the relief asked for. But again, what could be said to be material facts would

depend upon the facts of each case and no rule of universal application can be laid down.

If it is seen in the light of the above factual matrix and the legal precedents, then the application filed by the applicant cannot be allowed in its

entirety. Only in relation to citizenship issue, receipt of copy of Compact Disc and Electronic Voting Machines, the applicant is entitled to succeed.

In respect of reception of the Election Petition and lack of territorial jurisdiction and striking of the entire Election Petition, the application must

necessarily fail.

The 13th Respondent had orally stated that the original election Petitioner has now defected from the AIADMK party and had joined the

ruling DMK party to which the applicant belongs. Hence, the election Petitioner is not likely to prosecute the election petition. Therefore, he claims

that the burden all the more falls the persons like the 13th Respondent to conduct the case in case of any default on the part of the original Election

Petitioner. However, at this stage, this Court is not inclined to make any observation on this point in the absence of any proof to that effect being

brought by way of pleadings before this Court.

In the light of the above, the application is partly allowed to the extent indicated above. The parties are allowed to bear their own costs. Post

the main Election Petition on 14.3.2011. Written Statement if any must be filed before that date.