More than a year after the previous Legislative Assembly was dissolved, the Madras High Court on Wednesday set aside the by-election held to Ilayankudi constituency in 2009, nullifying the election of Dravida Munnetra Kazhagam (DMK) candidate S. Mathiarasan.
The court also set aside the entire poll process and held “improper,” the rejection of nomination papers of a candidate by the Returning Officer on a technical grounds.
Allowing an election petition filed by K. Kalaimani, Justice V. Dhanapalan said: “The rejection of nomination of the petitioner for the Ilayankudi Assembly Constituency by the Returning officer is improper, illegal, void and contrary to the provisions of the Representation of the People Act, 1951 and the Returning Officer's instructions, 2009, issued by Election Commission of India. As such, the entire process, including the election of the returned candidate, is set aside.”
R.S. Raja Kannappan (DMK) won the seat in 2006, but quit his post three years later and joined the AIADMK. He contested the Lok Sabha election in 2009 as AIADMK candidate from the Sivaganga constituency. The consequent vacancy at Ilayankudi led to the by-election, which was held on August 18, 2009. Mr. Mathiarasan (DMK) was declared elected.
The nomination papers of Mr. Kalaimani of the Makkal Maanaadu Katchi was rejected by the Returning Officer during scrutiny on the ground that the serial numbers of the proposers in the electoral rolls were wrongly stated.
Aggrieved, Mr. Kalaimani filed the petition in the Madras High Court, seeking to declare the rejection by the RO as illegal and to set aside the entire election process.
In his judgement, Justice V. Dhanapalan said: “Clause 9.1 of Hand Book for Returning Officers stipulates not to reject any nomination paper on the ground of any defect which is not of a substantial character. It also says that any mistake or error of a technical or clerical nature should be ignored by the Returning Officer.
“Such unjustifiable and improper orders of rejection on technical grounds has led to a large number of election petitions and the eventual setting aside of several elections with consequent avoidable waste of time, money and labour for all concerned. Similar instances of improper rejections should not occur again and it is up to the Returning Officer to interpret the provisions of the law intelligently and with common sense.”
The judge noted that the Returning Officers of Bargur and Srivaikundam constituencies had conducted fresh scrutiny on August 1, 2009 in their respective constituencies on the advice of ECI and Chief Electoral Officer and accepted the nomination papers of rejected candidates for the reason of wrongly stating the serial numbers of the proposers in their nomination papers. It was not known to this court as to why the ECI and CEO had not ordered re-scrutiny in the present case which faced a similar situation.
Mr. Justice Dhanapalan said: “From this, it is vivid that the CEO had not done his duties and responsibilities as prescribed both in the rules and the instructions. As such, the said inaction is hit by Article 14 of the Constitution. Hence, the lackadaisical attitude of both the Returning Officer and the Chief Electoral Officer has to be highly deprecated.” He said the winning candidate could not be faulted for the lapses on the part of the election authorities.
Though the matter had become infructuous, the Judge said: “In view of the serious lapses on the part of the Returning Officer and also the Chief Electoral Officer, the decision on the election petition should not only be academic, but realistic as well. Accordingly, the Returning Officer and the Chief Electoral Officer of the relevant period and the Election Commission of India are jointly and severally directed to pay costs of Rs.25,000 to the election petitioner within a period of one month from the date of receipt or production of a copy of this order.” The Judge also said: “It is desirable that Election Commission of India shall ensure the appointment of Returning Officers with knowledge of electoral laws and by giving proper training to them so as to strictly adhere to the provisions of the Act and the Handbook for Returning Officers.
