R.Thirumavalavan v. Sumathi Udayakumar

It is further stated that the conduct of the second respondent in procuring the assistance of the Presiding Officer and casting a vote was a material irregularity, materially affecting the election process. The same also amounts to non-compliance of the provisions of the Constitution and the provisions of the Act and other rules, orders and guidelines contained in the Hand book issued to the Returning Officers. The action on the part of the second respondent had resulted in premium to the high handedness of the second respondent, various other voters, agents and partymen belonging to the second respondent. The fact that the second respondent had cast his vote at Virudhachalam Arts College, despite not being a voter, spread like wild fire and had emboldened partymen belonging to the second respondent who indiscriminately entered the polling booths and had cast votes improperly and the same was done with the active assistance of the Presiding Officer.

The petitioner further submits that the 1st respondent had filed a complaint with the Election Commission of India and also by the Communist party (Marxist, Cuddalore). Its District Secretary also lodged a complaint with the Election Commissioner. Similar complaints were filed before the Electoral Officer and before the Chief Election Commissioner of India on 22.10.1999. The petitioner further contends that the Election Commission of India had called for a report from the Chief Electoral Officer, Tamil Nadu and to take disciplinary and criminal action against the Presiding Officer of the said booth. The District Collector had also initiated disciplinary action against the Presiding Officer. However, no order has been passed by the Election Commissioner. The second respondent has without any due authority received the ballot paper from the Presiding Officer and had put the said ballot paper in the ballot box, which is not authorised under the law. Without any due authority he had interfered with the ballot box and he had fraudulently committed the said illegal Act wilfully and the Presiding Officer of the polling booth had also abetted the same resulting in irregularities. The second respondent was therefore guilty of electoral offences under Section 136 (d) (e) (f) (g) of the Representation of the People Act and is liable to be punished under Section 1 36 (2) (b) of the Act. He has also committed offences under Section 1 71 (c) (d) of the Indian Penal Code and punishable under Section 171 (f).

The petitioner further contends that his Chief Election Agent Mr.Vinayagamoorthy also lodged a criminal compliant with the Virudhachalam Police Station on 30.10.1999. He requested the Inspector of Police to take the complaint on file and investigate the same and to take appropriate proceedings. In the news papers also, the news item relating to the conduct of the second respondent were published in detail. In the "Hindu" dated 17.10.1999, it was also reported that action was being taken by the Chief Electoral Officer against the Presiding Officer and that the voter was allowed to vote by the Presiding Officer on the strength of his statement that the Revenue Divisional Officer, Ponneri, who is the Electoral Registration Officer of the Villivakkam Assembly segment had informed him that he can vote anywhere on the basis of the extract of the electoral roll of that assembly segment. Various political parties have also issued statements demanding action to be taken against the second respondent for having deliberately infringed the provisions of the Act and Indian Penal Code.

Petitioner further submits that the fact that he had voted at Virudhachalam in the said booth is not disputed by the second respondent himself. He has admitted his action by giving a statement to the Press. The said statement of the second respondent was published in " Dinamalar" dated 18.10.1999. It was also revealed that the second respondent has stated that he was a voter in the Villivakkam Assembly segment and that the Revenue Divisional Officer, Ponneri has given a Certificate to that effect, which he had shown to the Presiding Officer of the booth at Virudhachalam. It was only on showing the said Certificate, he was allowed to vote in the said booth and therefore he has not committed any wrong, according to the statement of the second respondent. In the "Hindu" published on 20.10.1999, it was reported that the Election Commission has received a detailed note from the Chief Electoral Officer of Tamil Nadu on the episode and that the second respondent has been allowed to vote in a polling booth even though his name was not found in the voters list. It was further reported that the Chief Electoral Officer of Tamil Nadu had initiated action against the Presiding Officer of the booth where the second respondent had exercised his franchise.

The petitioner further submits that the second respondent himself has admitted that he had voted in Virudhachalam and thus in law it amounts to an admission by the second respondent and he was thus guilty of committing an offence under Section 136 of the Representation of People Act and 171 (c) (d) of the Indian Penal Code and punishable under Section 171 (7) of the Act.

The petitioner further states that the election of the second respondent was vitiated under Section 100 (1) (b) and also Sections 10 1 (d) (iv) besides being guilty of the offence under Section 136 of the Act and therefore his election must be declared as invalid. While the second respondent has secured 3,45,331 votes, the petitioner has secured 2,25,768 votes. The petitioner had conducted himself within the frame work of law and had scrupulously followed the provisions of the Constitution and the Act and the conduct of Election Rules.

The petitioner further contended that in view of the fact that the election of the second respondent was liable to be set aside under Section 100 of the Act, he had prayed that this Court may declare election of the returned candidate to be void and under Section 101 of the Act that the petitioner who came second has to be declared as elected from Chidambaram (SC Parliamentary Constituency). The petitioner also claims to have complied with all the requirements and ultimately he had prayed for declaration that the election of the second respondent was null and void and to declare that the petitioner was the duly elected candidate to the Constituency.

The second respondent herein, filed an application under Section 83 (1) (a) and 88 of the Representation of the People Act, the Application No.O.A.58 of 2001 seeking for striking out the allegations contained in paragraphs 8 to 11, 14, 16 to 21 in the election petition. A detailed affidavit in support of the said petition was also filed by the second respondent. A counter was filed by the election petitioner.

This Court after hearing both parties and after having dealt with the issues in detail by order dated 19.10.2001, partly allowed the said application only to the extent of striking out paragraph 23 alone. In other respects, the said application was dismissed and the election petition was directed to be taken up for trial on 2.11.2001.

After the disposal of O.A.No.58 of 2001 on 19.10.2001, the second respondent filed his written statement on 30.10.2001. The second respondent pleaded as follows.

Under the provisions of Representation of People Act, hereinafter called the Act, an election can be called in question only by election petition and filed in accordance with Chapter-2 of the Act. The grounds on which the petition can be filed are set out under Section 100 of the Act. In the event of any allegation of improper reception or rejection of any vote or reception of an y vote which is void, then the pleadings must clearly state that the election in so far as the respondent was concerned had been materially affected. There are no pleadings to the said effect. One of the grounds available under Section 100 for declaring the election as void is the commission of corrupt practice by a returned candidate. Such corrupt practices should be confined to Section 123 of the Act. Except for referring to Section 1 23(7), the election petition does not set out the material facts or particulars of ingredients of the corrupt practice.

The respondent further states that it is not alleged as to how and in what manner and at what point of time the assistance of the Presiding Officer in booth No.42 was procured. It was mischievous to allege that the casting of the vote by the respondent in booth No.42 had materially affected the election process. There is no basis for the allegation that number of voters who were not registered in the Constituency had voted in Chidambaram (SC Parliamentary Constituency). No facts and circumstances have been alleged. As regards the complaints which are alleged to have been made against the respondent, the petitioner has not alleged the details or the gist of the complaints alleged to have been made against the respondent. The respondent further states that he understands it to be true that the Election Commission of India declined to interfere with the complaints made by the petitioner. The allegation as if on 5.9.1999, he had entered the polling booth without due authority and had received the ballot paper from the Presiding Officer and fraudulently put it into the ballot box were incorrect and misleading. The respondent did not commit any fraudulent Act. It was incorrect to allege that the respondent was allowed to vote by the Presiding Officer on the strength of the statement that the Revenue Divisional Officer had informed that this respondent that he can cast his vote anywhere on the basis of the extract of the voters list of the assembly segment. He has not committed any violation of the provisions of the Act or any offence under Indian Penal Code. The respondent would further submit that the statement which appeared in newspaper in "Dinamalar" dated 18.10.1999 clearly sets out the circumstances in which the respondent was allowed to vote in booth No.4 2 as admitted by the petitioner himself. The permission granted to the respondent by the Presiding Officer in the polling booth does not amount to an admission of guilt under Section 136 of the Act and also under Sections 171 (C) and (D) of Indian Penal Code.

The respondent further contends that the petitioner has not alleged as to how such a casting of his vote had materially affected the result of his election.

It is further contended that an election petition must be signed and verified by the petitioner in the manner indicated in C.P.C for verification of the pleadings. The election petition has not been verified properly by the election petitioner. Therefore the election petition was liable to be rejected. The verification does not specify as to how some of the paragraphs are verified either as true to his knowledge or how the facts stated in other paragraphs were found to be true to the best of his information. The affidavit accompanying the election petition is also not been verified as required by law. The petitioner has not disclosed any personal knowledge of the allegations in paras-1, 2, 3, 4, 6, 12 and 16. Therefore, the election petition was liable to be dismissed for want of proper verification. The respondent further submits that personation is not a corrupt practice. Votes cast by personation are void votes. The election could be avoided only if the reception of votes cast by impersonation has materially affected the result. The mere misdescription in the electoral roll does not constitute impersonation. A person is said to vote by personation when he casts the vote in the name of another or in a fictitious name. Therefore the allegation that the respondent had committed an electoral offence and also a corrupt practice was nothing but a misconception of the relevant provisions of the Representation of People Act.

After the filing the written statement, the following issues were framed for trial on 7.3.2002:- (1) Whether the election of the second respondent to the 13th Lok Sabha from No.12, Chidambaram (SC) Parliamentary Constituency is to be declared as null and void? (2) Whether the conduct of the second respondent in having voted in Vridachalam Assembly Constituency, would render his election null and void? (3) Whether the second respondent is guilty of corrupt practice as contemplated under Section 123(7) of the Representation of the People Act? (4) Whether the election of the second respondent is liable to be declared void for non-compliance of the provisions of the Representation of People Act, 1951 and of the Constitution of India? (5) Whether the election petitioner is entitled to be declared as elected from Chidambaram (S.C.) Parliamentary Constituency? (6) To what other reliefs the petitioner is entitled to?

Thereafter, the trial was taken up and the examination of witnesses by both sides as well as that of Court witness No.1 were over on 23.9.2002. On 11.10.2002, when the election petition was posted for arguments, after the argument of the learned Senior counsel for the petitioner had been completed, the learned Senior counsel for the second respondent commenced his arguments. In the course of his arguments, learned Senior counsel contended that the Presiding Officer of booth No.42 who was alleged to have rendered assistance to the second respondent and thus amounting to a corrupt practice under Section 123 (7 ) of the Act, was not a person in the service of the Government and also did not belong to any of the categories mentioned under Section 1 23 (7) (a) to (g). According to the learned Senior counsel, the Presiding Officer was only a School B.T. Assistant and as such he did not fall under any of the categories mentioned under Section 123 (7) and he was not a Gazetted Officer.

A reply affidavit was filed by the election petitioner contending that the said Ramalingam was a Government servant and fell within the category of Officers under Section 123 (7). In the written statement, the said issue was not raised by the respondent and the point was raised only at the stage of argument and therefore the petitioner has to be given an opportunity to examine the Presiding Officer to let in evidence as to whether he belongs to any one of the categories of Government servants mentioned under Section 123 (7). Order 20 Rule 1 7 (A) permits the parties to let in evidence at a later stage also.

On consideration of the said contentions and after hearing both parties, I had ordered the petition for reopening and also to examine the said Ramalingam as a Court witness by order dated 11.11.2002. I had held in the said order that the point raised on behalf of the respondent was not raised at any time earlier either in the counter statement of the second respondent nor has any issue been framed for trial. The claim of the petitioner of the P.O being a Government servant under Section 123 (7) was never disputed or denied by the respondent. In fact, no suggestion was also made to the witnesses examined by the petitioner nor even by the respondent himself who was examined as RW.1. The issue was raised by the learned Senior counsel for the second respondent for the first time only in the course of his arguments and that the Court had permitted the counsel to advance arguments only for the reason that the issue goes to the root of the matter and affects the very basis of the election petition. It is only in those circumstances, the election petitioner had come forward with the petition to examine the said Ramalingam. Therefore I held that the objection by the second respondent cannot be entertained. Dealing with the contention of the learned counsel for the second respondent that in the event of the applications being allowed then the scope of the evidence of the proposed witness has to be restricted only for the purpose of finding out whether he is an Officer under any one of the categories of Officers under Section 123 (7) and that the witness may not be examined for any other purpose, I had agreed with the said objection. While allowing the applications it was made clear that the examination of the said Ramalingam as a witness will be restricted only to the issue as regards whether he is a person in the service of the Government, and whether he would fall within any of the categories of Officers mentioned under Section 123 (7) and that the witness was not to be examined for any other purpose.

In view of the entertaining of the objections by the second respondent as aforesaid, the following additional issue was framed and summons were also issued to the said Ramalingam to be examined as Court witness No.2 Additional Issue No.1 Whether the Presiding Officer of Booth No.42 was a person in the service of the Government in terms of the provisions of Section 123 (7) Representation of the People Act, 1951, as on the date of the Poll?

In his evidence as PW.1, the election petitioner has stated that he belongs to Dalit Panthers Party. He has prayed for setting aside the election as the second respondent had resorted to corrupt practice with the connivance of the Presiding Officer to cast his vote in booth No.42. The Officers in the booth objected to it because his name was not found in the voters list but the second respondent and the people who accompanied him had threatened the Presiding Officer. The second respondent and his companion took the Presiding Officer aside and had discussion with him. Thereafter the second respondent was allowed to cast his vote with the assistance of the Presiding Officer, knowing fully well that he cannot cast his vote without the assistance of the Presiding Officer. The Presiding Officer was at that time working as B.T. Assistant in Panrutti Taluk. Disciplinary action was in fact taken against the said Presiding Officer.

In the cross examination, the petitioner has stated that he cast his vote on 5.5.2001 in his village at Andimadam between 11.00 and 11.30 a.m., and only after casting his vote he came to his Constituency and to the polling booth in question. In the cross-examination, he has also given the details relating to the location and the details relating to the situation of the polling booth. He denied the suggestion that his description of the location of booth No.42 was not correct. He did not ascertain from his Chief Election Agent as to who was his polling agent in booth No.42. Apart from the Presiding Officer, there were some other polling Officers totalling about four of them inside the booth on that day. He was not present when the second respondent cast his vote in the booth. The facts stated in the complaint dated 30.10.1999 and in the petition were based on the information given to him by the election agent.

In the re-examination, PW.1 has stated that he could not give the complaint immediately because his Chief Election Agent was arrested in the early hours on the following day and there was also violence in the Constituency on the following days.

One Vinayagamoorthy has been examined as PW.2, who is the Zonal Secretary of the Dalit Panthers Party and he was the Chief Election Agent of the petitioner. He had appointed the polling agents and one Selvam of Tamil Manila Congress was appointed as polling agent in respect of booth No.42. He went to the polling booth at about 11.00 a. m. And one of the candidates, viz., the second respondent accompanied by 25 others came to the polling booth. The second respondent approached the Presiding Officer and wanted him to permit him to cast his vote. The Presiding Officer refused the request. There were also shoutings and exchange of words between the Presiding Officer and the second respondent. Thereafter, he had cast his vote in spite of his objections. Other agents are also objected. He could inform the election petitioner only in the afternoon. From Virudhachalam, he went to Kolichanur Government Girls Arts College which was also another polling booth. He had given a complaint that the second respondent had cast a bogus vote. He gave a complaint to the police on 30.10.1999. He was arrested in the early hours of the following day and remanded to custody and he was subsequently released only after 35 days and that is why he could not give the complaint immediately. One Ramakrishnan who was the agent for the 'Congress Party' was also present when the second respondent had cast his vote.

In the cross-examination he would state that he belongs to Eraiyur Village which was about 20 kms from Neiveli and Virudhachalam was about 22 kms from Neiveli. He had cast his vote in Eraiyur Village at about 4.00 p.m. to 4.15 p.m. He was going to various booths including polling booths in Neiveli. He went to Neiveli before 10.15 a.m. And after completing his rounds at Neiveli, he went to the polling booth at Arts College, Virudhachalam. From Neiveli, he went directly to the polling booth in the Arts College and he did not visit the other polling booths. He reached booth No.42 between 10.55 a.m., and he was there for about half an hour. He cannot say how many police officers were posted in the said booth. There was one Presiding Officer in the booth. There were six polling agents inside the room where the polling was taking place. He has appointed one Selvam as polling agent. When he entered the polling room, he saw the polling agents and election Officers inside the room.

One G.Ramakrishan, who was the Election Agent for the ' Congress Party' has been examined as PW.3. Ex.P.9 is the identity slip. He would state that the second respondent came to the booth at 11.00 a.m., along with his supporters. He had cast his vote though he was not a voter in the said booth. The second respondent's name does not find a place in the list of the voters in that booth. He objected to the attempt on the part of the second respondent to cast his vote. But the supporters of the second respondent shouted him down. The second respondent along with his supporters went to the Presiding Officer and told him that he wanted to cast his vote. The Presiding Officer refused to allow him on the ground that he was not a voter. The second respondent took the Presiding Officer aside and talked to him. Thereafter the Presiding Officer allowed the second respondent to vote stating that he would see that the second respondent wins the election. He told about the incident to the candidate Dr.Sumathy Udhayakumar and she gave a complaint to the election authorities.

In the cross-examination, PW.3 would state that his native place was Virudhachalam. It was not correct to state that the total number of votes polled on that day in booth No.42 was 265. The total number of votes in the said booth was 185. He does not have a separate note regarding the list of persons who had cast their votes. In the list of voters he had ticked the names of persons who had voted. He knows Govindasamy who was the sitting MLA of Virudhachalam. He came along with the Ponnusamy at 11.00 a.m. Govindasamy did not have vote in booth No.42. The witness did not give any written objection against the voting by the second respondent, as it was not the procedure to accept any written objection in the polling booth. His candidate Dr. Sumathy Udhayakumar gave a written complaint subsequently and similarly ' Communist Party of India" also gave a written complaint. Subsequently, he came to understand that action has been initiated against the Presiding Officer. But he does not know about the details of the disciplinary action. The witness also denied the suggestion that the second respondent cast his vote at 8.00 a.m., on the said day.

The second respondent has examined himself as RW.1. He had contested the Parliamentary elections from Chidambaram Parliamentary Constituency which was held in 1999 as a candidate belonging to PMK. On the polling date, he went to booth No.42. There were six polling booths inside the college campus and he went around 8.00 a.m. He went to the booth alone and went inside the booth because he wanted to know whether he can cast his vote though he was aware that he did not have his name in the booth. He did not meet anyone in the polling booth. He just wanted to know who was the Presiding Officer and one particular person identified himself as the Presiding Officer. He showed him the Certificate issued by the Revenue Divisional Officer, Ponneri and wanted to know whether he could cast his vote in the booth on the basis of the said Certificate. As he was not aware of the Electoral Law, he wanted to know whether he could cast his vote in the said booth, even though his name does not figure in the voters list. The Presiding Officer then consulted his polling officers for a minute and directed them to give the last sheet of the ballot paper. Since a candidate could contest anywhere in India, he wanted to know whether he could cast his vote in the booth based on the Certificate issued by the R.D.O. After consultation among themselves, the Polling Officer took his signature on the counterfoil of the ballot paper and the witness cast his vote. He was inside the booth for hardly about 2 or 3 minutes. Thereafter he went all around the Constituency to know about the trend of polling. Around 11'o clock, he was in Mangalore Constituency. When he had asked the Polling Officer his permission to vote, there was no objection from anyone.

On the date of polling, he was residing in a rented house in Virudhachalam. Dr.Govindasamy also came along with him and with his wife. He went to one of the six polling booths. He left his house on that day at about 7.45 a.m. To 8.00 a.m., and he first visited booth No.42, who was accompanied by two or three of his party people. He did not go into the booth followed by a motor-cade of several cars. The witness would further state that he came to politics at the end of 199 0 and prior to the same, he was a writer, publisher and social worker. He was a friend of Mr.Mani Sankara Iyer, who was a Congress M.P. He has not written many books on politics. He has translated books on fiction and non-fiction. Even when he filed his nomination papers, he was aware that he could not cast his vote in Chidambaram Parliamentary Constituency. He does not know as to whether a mock poll was held in a number of polling booths including booth No.42 prior to the announcement of the polling.

Mr.Naresh Gupta, who was the then Chief Electoral Officer during the elections in May 1999 has deposed as Court witness No.1. In his evidence, he has stated that he submitted four reports to the Election Commissioner in respect of the election held to Chidambaram Reserved Constituency on 15.10.1999, 18.10.1999, 20.10.1999 and 21.10.1999 . He also enclosed a copy of the press release made by them along with his report dated 20.10.1999. The said reports were with reference to the electoral offence committed by the second respondent on a representation given by Dr.Sumathy Udhaya Kumar and Mr.Dhanasekaran, District Secretary of the CPIM. Ex.C.1 series are the four reports given by the witness. For the question as to whether the reports contain statement of facts as well as the opinion of the witness, the witness replied that the report was based on the report of the Returning Officer of the Chidambaram Parliamentary Constituency together with the legal provisions under the Representation of People Act. Replying to the question by counsel for the second respondent, the witness would state that the report was not result of the enquiry held by him and he did not verify as the correctness of the report given by the Returning Officer.

As stated earlier, after the arguments had commenced due to the circumstances already mentioned above, the Presiding Officer was summoned as a Court witness. He was examined as Court witness No.2, only for the purpose of ascertaining as to whether he belonged to any of the categories of the Officers mentioned under Section 123(7) of the Act. He would state that he was the Presiding Officer in booth No.42 . He was given an order of appointment as Presiding Officer and Ex.C.2 is the order of appointment issued by the District Election Officer. At that time, he was working as B.T. Assistant at Government Girls High School. He was in Government Service and his basic pay at that time was Rs.8,000/-. To a specific question as to whether he was a gazetted Officer during the said period, the witness would deny the same. The witness had brought the Service Register, which is marked as Ex.C.3. By referring to Page No.10 of Ex.C.3, he would agree that his designation has been shown as Special Grade School Assistant. His pay as on 1.7.1998 was Rs.9,650/-. He would admit that there was a rule that any employee drawing a pay above Rs.5,000/- was eligible to attest the documents. The said rule was however introduced only after the elections. No panel was prepared by the Government of the eligible persons to be given Selection Grade or Special Grade. The Joint Director of Education confers Selection Grade, on employees who complete 10 years of his service. He would admit that Special Grade was superior to Selection Grade. While being cross examined by the counsel for the second respondent, he would state that on the day when the polling took place on 5.9.1999, he was a Special Grade School Assistant. He has not been classified by the Department as a Gazetted Officer. He does not know as to whether only Headmasters of Government High Schools have been notified as Gazetted Officers. He would further agree and state that because he was given Selection Grade and the Special Grade, he was not notified as a Gazetted Officer.

Mr.G.Subramaniam, learned Senior Counsel for the petitioner took me through the oral and documentary evidence and contends that the fact that the second respondent had voted in booth No.42 where he is not a voter, is an admitted fact and not disputed. The fact that he had prevailed upon the Presiding Officer to allow him to vote is also an admitted fact except for the attempt on the part of the second respondent to make it appear as though the second respondent did not put any pressure or any coercion or undue influence on the Presiding Officer. Though there may be some discrepancy regarding the actual time when the second respondent had cast his vote as between the evidence on the side of the petitioner and on the side of the second respondent, the necessary basic facts are admitted by the second respondent himself and hence the contradictions, if any, are immaterial. The fact that the second respondent had secured also the assistance of the Revenue Divisional Officer, Ponneri by giving a Certificate to him, certifying that he is eligible to vote at Chidambaram Constituency, is again an admitted fact.

Learned counsel would further submit that the ingredients of Section 123 (7) are more than adequately satisfied and that the intention of the Parliament behind enacting Section 123 (7) was clear, viz., to maintain purity of elections and that the election process should be fair and impartial. The single vote cast by the second respondent or a handful of similar votes polled by few other individuals may not have affected the result of the election. But the gravity of the misconduct cannot be judged only from the point of view of difference of votes and whether the misconduct would have made any difference to the result of the election. Utilising the service of the Presiding Officer, will be the most significant instance of the corrupt practice as enumerated under Section 123 (7), which has been committed in the present case with impunity. Learned Senior Counsel referred to the distinguishing features between the relief to be granted in election petition under Section 100 (1) (b) and Section 100 (1) (d) (iv) of the Act. While the former would result in setting aside the election on proof of the alleged corrupt practice, under the second provision apart from proof of the corrupt practice, the petitioner should also establish that the result of the election had been materially effected. Therefore, if once the allegation of corrupt practice under Section 123 (7) was established, this Court would be inclined to set aside the election. Apart from Section 123 (7), the learned Senior Counsel would also submit that the election was also liable to be set aside under Section 100 (1) (d) (iv) considering that on the face of the conduct of the second respondent, it amounted to non-compliance and violation of the provisions of the Act and the rules made thereunder and the election was liable to be set aside.

On the issue of the Presiding Officer, being or not being an Officer under any of the categories mentioned under Section 123 (7), reference is made to Section 129 which also restrains the polling Officials from doing any act for the furtherance of the prospects of the election of a candidate. According to the counsel, Section 129 should be read with Section 123 (7) which would make it clear that the election staff of various categories as mentioned thereunder would fall under the category of Officers mentioned under Section 123 (7). Admittedly, the Presiding Officer (P.O.) was a Government servant. He was drawing a salary of nearly Rs.10,000/-. He was appointed as the Presiding Officer by the Collector as an Official acting under the provisions of the Act and in fact, after the incident, disciplinary proceedings were also initiated against the Presiding Officer. In furtherance of the submission that the Presiding Officer in this case is a Gazetted Officer, learned counsel referred to G.O.Ms.No.427 (Finance Department) dated 28.8.1998.

Learned Senior Counsel further submits that the provisions of the Act, especially Part-VII dealing with corrupt practices, requires to be interpreted in a manner to uphold the purity in elections and not in a manner which would render the provisions ineffective and meaningless. Reference was also made to the rulings of this Court and the Supreme Court in support of his various contentions, which will be dealt with later at the appropriate stage in order to avoid repetition.

Mr.R.Thiyagarajan, learned Senior Counsel for the second respondent had raised the following contentions.

He would contend that the polling figures will show that the second respondent had won the election with a huge margin of 1,19,563 votes and therefore, while any issue is to be taken up for consideration for setting aside the election, the Court has to bear in mind as to whether the allegations made against the elected candidate would warrant interference and whether the act complained against the declared candidate would have really contributed to the success of the declared candidate. The difference in the votes was so vast that the allegation of a single person having cast his vote wrongly, has to be ignored at the threshold itself. He would further submit that none of the allegations in the election petition regarding the circumstances under which the second respondent had cast his vote, had been substantiated. In para-8 of the election petition, it is alleged that the second respondent had entered the booth forcibly accompanied by his partymen and the Presiding Officer succumbed to the force and had allowed the second respondent to vote. Neither the election petition contains any details, much less any evidence had been adduced in the trial in the said context. There was also no allegation of the Presiding Officer having done anything intentionally to further the prospects of the second respondent. In para-9, an allegation has been made to the effect that the conduct of the second respondent resulted in several other supporters and the party members belonging to P.M.K., having indiscriminately entered the polling booths and had cast their votes and they had done so with the active assistance of the Presiding Officer and that the actual number of such voters will be furnished at the time of trial.

According to the learned Senior Counsel, no such evidence had been let in by the petitioner. There are no proper details in the election petition regarding the time when actually the second respondent had cast his vote. In the evidence, there were contradictions regarding the actual time. As per the evidence of the second respondent, he had voted in the early morning at about 8.00 a.m., which was consistent with the official evidence of the Chief Electoral Officer, who had been examined as C.W.1. Ex.C.1 series disclose that the voting by the second respondent took place at about 7.15 a.m. Therefore, the claim of the witnesses for the petitioner as though they had witnessed the scene at 11.00 a.m., is totally false and their evidence has to be ignored. None of the witnesses for the petitioner were speaking the truth.

While dealing with the ingredients of Section 123 (7), learned counsel contends that to make out a misconduct of corrupt practice under the said provision, it was not sufficient to merely establish that the respondent had obtained the assistance of any of the Officers mentioned thereunder. It was also necessary to establish that the assistance was aimed at furthering the prospects of the election of the respondent. The prospects of election of the respondent was not going to be increased or enhanced by the polling of a single vote by the second respondent. It is not as though the Presiding Officer had done anything more than permitting the second respondent to vote at the booth which resulted in casting not more than a single vote. Such an action cannot be said to be in furtherance of the chances of the second respondent to win the election.

On the issue as to whether the Presiding Officer falls under any one of the categories mentioned under Section 123 (7), learned Senior Counsel contends that it is admitted by the petitioner himself, that the Presiding Officer was working only as a B.T. Assistant at the relevant point of time. In the cross-examination also he has admitted that the Presiding Officer was a teacher. A B.T. Assistant is not a Government Servant much less a Gazetted Officer. The ingredients of Section 123 (7) has to be strictly made out and the person whose services or assistance had been alleged to have been obtained by the successful candidate should fall strictly under any one of the categories mentioned thereunder. If not, the election petition has to be thrown out. There can be no inference, presumption or conclusion of the nature of the post or category only on the basis of pay scale so as to treat an individual as a Gazetted Officer. The term Gazetted Officer has a definite meaning and can refer only to individuals holding a post specifically notified as a Gazetted post. The post of B.T. Assistant was not a Gazetted post. The power of signing or attesting documents could be given to any one and he need not be even a Government servant. There is absolutely, no evidence on the side of the petitioner to show that the Presiding Officer was a Gazetted Officer. He does not fall under any of the categories specifically mentioned under Section 123 (7). No rules have also been framed under Section 123 (7) (g) which visualises any other class of persons in the service of the Government being prescribed and notified for the purposes of that Section.

In support of his submission that the reliefs contemplated in an election petition, arise only out of a statutory right and is not a fundamental or common law right and can be granted only strictly within the four corners of the statute, counsel relies on the following judgments:- 1. N.P.Ponnusami vs. Returning Officer, Namakkal (AIR 1952 SC 64) 2. Jyoti Basu vs. Debi Ghosal (AIR 1982 SC 983) 3. Mohinder Singh vs. Chief Election Commissioner (AIR 1978 SC 851)

The provisions under the Act are mandatory and have to be strictly complied with, vide the following judgments:-