CHENNAI: The Madras High Court on Sunday questioned the Election Commission of India over complaints that a postal ballot meant for Tirupattur Assembly constituency in Sivaganga district was mistakenly sent to Tirupattur constituency in Tirupattur district -- a seat where DMK leader and state minister K R Periyakaruppan lost by one vote -- and directed the ECI to file an affidavit on the issue on Monday.
Notably, Periyakaruppan, who polled 83,364 votes against TVK’s R Sreenivasa Sethupathi’s 83,365 in the recently concluded Tamil Nadu Assembly elections, has sought a recount and an interim injunction restraining the TVK MLA-elect from taking oath and participating in Assembly proceedings.
During a special Sunday sitting, a vacation bench comprising justices L Victoria Gowri and N Senthilkumar also grilled the ECI over what it termed an evasive response to the issue. “What you say is ECI cannot open the issue because we have become functus officio. Therefore, it is a matter of election petition,” the bench noted.
It questioned, “How can the ECI say it has become functus officio when the primary issue is one ballot paper went to one constituency from another?”
“Having received representations through e-mail, what action was taken on them?” the bench asked and further directed the Chief Electoral Officer of Tamil Nadu to file an affidavit on the matter on Monday.
Senior counsel Mukul Rohatgi, appearing for the petitioner, submitted that a postal ballot had gone to Tirupattur Assembly constituency (No. 50) in Tirupattur district instead of Tirupattur constituency (No. 185), where Periyakaruppan lost by one vote.
He said it was a “unique” and “peculiar” situation in which a postal ballot from the constituency where his client contested ended up in Tirupattur district, and the concerned Returning Officer rejected the vote instead of sending it back to the constituency to which it belonged.
Considering that the victory margin was one vote, the postal ballot, had it been returned, would have made a huge difference to the poll outcome, Rohatgi said, seeking a direction for the ballot to be returned and counted.
Senior counsel NR Elango, also appearing for the petitioner, submitted that election laws do not contemplate such a situation and, therefore, this was an extraordinary case warranting the court’s intervention under its extraordinary powers.
However, senior counsels Abhishek Manu Singhvi and V Raghavachari, appearing for TVK’s Seenivas Sethupathi, contended that the relief sought could only be raised through an election petition and not a writ petition.
“It is a clever camouflage used for seeking an injunction on legislative participation of the elected person instead of filing an election petition,” Singhvi told the court.
Holding that the interim relief sought in the petition was “inconceivable in law”, Raghavachari said, “No injunction can be granted in respect of a matter where duty is enjoined to be performed.”
Counsel for the ECI submitted that the election process had already concluded. “At this stage to interfere by any other way apart from an election petition is improper,” he said.
