'Bereft Of Material Facts': Madras High Court Dismisses Election Plea Against Duraimurugan [Read Order]

Madras: The Madras High Court has dismissed an election petition challenging the election of Dravida Munnetra Kazhagam's Duraimurugan as MLA from the Katpadi assembly constituency in the 2021 Tamil Nadu assembly elections, holding that the petition was vague and bereft of material facts, and that it had, in any event, become infructuous with the expiry of the assembly's term.

Justice G.K. Ilanthiraiyan was hearing an election petition filed by All India Anna Dravida Munnetra Kazhagam candidate V. Ramu under Sections 80, 80A, 81, 82, 83, 84, 98(b)(c) read with Sections 100, 100(1)(d)(iii), 100(1)(d)(iv) and 101 of the Representation of the People Act, 1951, seeking a declaration that Duraimurugan's election was void, along with a direction to declare himself as the returned candidate.

The 2021 election to No.40 Katpadi Assembly Constituency was contested by Ramu on the AIADMK's "two leaves" symbol and by Duraimurugan on the DMK's "rising sun" symbol. Counting took place on 02.05.2021, and Duraimurugan was declared elected with 85,140 votes against Ramu's 84,394 votes, a margin of 746 votes out of the 1,86,763 votes polled in the constituency.

Ramu contended that the Returning Officer had failed to count Electronic Voting Machines in five polling stations, including polling station No.110A(W), and had not verified postal ballots in accordance with Rule 54-A of the Conduct of Election Rules, 1961. He alleged that his objections raised during counting, including for violation of Rule 56-D, were denied, and that the Returning Officer refused to receive his written complaint.

Duraimurugan, who had filed applications seeking rejection of the election petition and to strike out paragraphs 11 to 34 of the petition, argued through his counsel that the petition disclosed no cause of action, that the allegations were vague and unsupported by particulars, and that the petition had in any event become infructuous since the assembly's term had expired and fresh elections had since been held for the same constituency.

The court framed two questions for consideration: whether the election petition was liable to be rejected for want of material facts, and whether it had become infructuous with the expiry of the assembly's term.

On the first question, the court held that the petitioner had failed to state the number of postal votes allegedly not bearing the gazetted officer's seal, had not produced any complaint said to have been lodged before the Returning Officer on the date of counting, and had raised his objection only on 15.05.2021, thirteen days after the declaration of results, that too by registered post without proof of acknowledgment. Relying on the Supreme Court's decision in C.P. John Vs. Babu M. Palissery & ors., (2014) 10 SCC 547, the court reiterated that compliance with Section 83 of the RP Act is mandatory and requires a concise statement of material facts followed by the fullest particulars.

"The omission of even a single material fact shall lead to an incomplete cause of action and statement of claim becomes bad... Therefore, the election petition is liable to be dismissed for violation of mandatory provision under Section 83(1)(a) of the RP Act."

On the EVM count itself, the court found that the votes polled in polling stations No.4, 15A(W), 19M and 180M had in fact been counted during rounds 2 to 18, contrary to the petitioner's averment. As for polling station No.110A(W), the court noted that a mismatch had been detected between Form 17-A and the total votes cast, with the EVM showing 564 votes against an actual 514 polled, the difference being attributable to 50 mock-poll votes that had not been deleted before the commencement of actual polling. Since the victory margin exceeded the total votes recorded in that booth, the EVM was not taken up for counting, in accordance with the Election Commission of India's instructions dated 21.05.2019.

On the second question, the court held that since the election petition had not been filed on the ground of corrupt practice, it could not survive the expiry of the assembly's term. It noted that fresh elections had since been held for the 17th Tamil Nadu Legislative Assembly, in which both Ramu and Duraimurugan had contested the Katpadi seat and lost. Relying on Mundrika Singh Yadav Vs. Shiv Bachan Yadav & ors., (2005) 12 SCC 211, and its own earlier ruling in B.Ramkumar Adityan Vs. Anitha R.Radhakrishnan & ors., the court held that once the challenge failed to disclose material facts, the petition would in any event be rendered infructuous by the subsequent expiry of the assembly's term and the conduct of fresh elections.

"...the allegations and the averments made in the election petition are vague, vexatious, frivolous, bereft of material facts and particulars and does not disclose any cause of action to maintain the election petition."

Accordingly, the court closed the original application in O.A.No.741 of 2021, allowed O.A.No.742 of 2021, and dismissed the election petition as infructuous. The connected original applications in O.A.Nos.675 of 2021 and 751 of 2023 were also closed, with no order as to costs.

Appearances:

For the Petitioner: Mr. B. Arvind Srevatsa.

For Respondent No.1: Mr. Richardson Wilson for M/s. Wilson Associates.

For Respondents No.2 to 14: No appearance.

For Respondent No.15: Mr. Niranjan Rajagopalan for M/s. G.R. Associates.

Case Title: V. Ramu vs. Duraimurugan & ors., E.L.P.No.4 of 2021 and O.A.Nos.675, 741, 742 of 2021 & 751 of 2023.

[Read Order]