V NARAYANASWAMY Vs. C P THIRUNAVUKKARASU

JUDGEMENT

(1.) This appeal is directed against the judgment dated August 18, 1998 of the Madras High Court allowing the miscellaneous application (Original Application No. 298/98) filed by the respondent under Order 6 Rule 161 and Order 7 Rule 112 of the Code of Civil Procedure (for short the 'Code') and thus holding that the election petition filed by the appellant under Section 100 (1)(b) and (d) of the Representation of the People Act, 1951 (for short the 'Act') stands dismissed under Section 83(1) of the Act read with the Code. In the election petition appellant had challenged the election of the respondent to the Council of States (Rajya Sabha) from the Pondicherry Legislative Assembly.

(2.) On September 16, 1997 Election Commission issued a notification calling upon the Legislative Assembly of the Union Territory of Pondicherry to fill up the vacancy on the completion of the term of the appellant in the Rajya Sabha. The notification also stipulated the election schedule. By the same notification the Secretary, Pondicherry Legislative Assembly was appointed as Returning Officer for the election. On September 26, 1997 the Election Commission released the list of contesting candidates. These were the appellants belonging to the Indian National Congress (INC) and the respondent belonging to Dravida Munnetra Kazhagam (DMK). On October 23, 1997 election was held and results declared the same day. Out of the total electorate of 29 members of the Legislative Assembly 27 cast their votes. Respondents polled 15 votes, the appellant 12. On October 7, 1997 notification dated October 6, 1997 to this effect was published in the Government Gazette. On November 17, 1997 appellant filed the election petition in the High Court challenging the election of the respondent. He alleged that election of the respondent was vitiated due to corrupt practice within the meaning of Section 123 (1)(B)(b)3 and Section 100 (1)(d)4 of the Act, committed by the respondent, his agents and other persons with the consent of the respondent.

(3.) The appellant alleged the following corupt practices committed by the respondent :-