Thiru.M.K.Stalin vs The Election Commission of India

2026:MHC:3609
W.P.No.34892 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 31.08.2026
DELIVERED ON : 03.09.2026
CORAM :
THE HONOURABLE MR. SUSHRUT ARVIND DHARMADHIKARI,
CHIEF JUSTICE
AND
THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN
W.P.No.348 92 of 2026
and WMP No s .38570 and 38573 of 2026
M.K.Stalin
Son of M.Karunanidhi,
No.25-9, Chitharanjan Salai,
Cenotaph 2nd Lane, Teynampet,
Chennai - 600 018.
Petitioner(s)
Vs
1. The Election Commission of India
Nirvachan Sadan, Ashoka Road,
New Delhi - 110 001.
2. The Chief Electoral Officer
Public (Elections) Department, Secretariat,
Fort St.George, Chennai - 600 009.
3. The District Election Officer
Greater Chennai Corporation
Chennai - 600 003.
4. V.S.Babu
S/o. Sundaram Illai
New No.59, Old No.19, Muruga Bhavan,
Thirunavukarasu Street, Perambur,
Chennai - 600 011.
______________
Page 1 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
5. P.Santhana Krishnan,
S/o Purushothaman,
No.12/103, Decastor Road, Pulianthope,
Chennai - 600 012.
6. Soundara Pandian Luder Seth
S/o Soundarapandiyan Muthu Nadar,
No.39/84, Saleem Lotus Flats,
Sathyamurthy Street, Devaraj Nagar,
Saligramam,Chennai-600 093.
7. S.Y.Syed Yusuf
S/o S.K.Syed Yacoob,
No.3a/31, Thillainayagam Pillai 3rd Street,
Venus, Perambur, Chennai-600 011.
8. Subashini
W/o Jagan Gopu,
No.290, Sri Vinayaga Nagar, 2nd Street
Anagaputhur, Chennai-600 070.
9. Aathithya
S/o Balasubramaniam,
No.421/28, Gkm Colony 21st Street,
Nethaji Street, Chennai-600 082.
10.R.Raj Guru
S/o Ramdass
No.33/32, Seeliyamman Koil Street,
V.O.C Nagar, Tondiarpet, Chennai-600 081.
11.R. Senthil Kumar
S/o S.Rajappan,
No.25/2, Alagiri Nagar 5th Cross Street,
Vadapalani, Chennai-600 026.
12.Selvi Steffi.V. M, D/o K.Mani,
No.23, Jawahar Street 4th Main Road,
Thirupathi Nagar Extension, Kolathur,
Chennai-600 099.
______________
Page 2 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
13.Oormila
W/o P. Senthil Kumar,
No.10/13a, Gorikadu, Pallapatti,
Leigh Bazaar, Salem West, Salem-636 009.
14.J.Suriya Muthu
S/o E.Jayaraman,
No.59/24, 30th Mgr Street, Gkm Colony,
Chennai-600 082.
15.Nanda Kumar
S/o Basker,
No.18/2, Kadappa Road, Teachers Colony,
Kolathur, Chennai-600 099.
16.A.L.Naresh Kumar,
S/o E. Arumugam,
No.7/1/13, Foxen Street, Perambur,
Chennai - 600 011.
17.M.Rajeshkumar
S/o Mani Uthandi,
No.14, Pulianthope, Ward No.72,
Tvk Nagar 4th Street, North Chennai,
Otteri, Chennai-600 012.
18.R.Mahesh
S/o P. S. Rajasekaran
No.25, Rc Flats, Anjugam Nagar
1st Main Road, Kolathur, Chennai-600 099.
19.M.Poornima
W/o G. Moorthy
No.72b, 1st Main Road, Prakash Nagar,
Ponniamman Medu, Madhavaram,
Chennai-600 110.
______________
Page 3 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
20.P.Milany
S/o K. Ponnuram,
No.7-5-5/9, Sanjay Gandhi 1st Street,
Selavaraj Illam, Pallani Chetti Patti,
Theni- 625 531.
21.Arul Doss. A
S/o M. Anthony,
No.48/20m, Ponvelpuram 4th Street,
Ayanavaram, Chennai-600 023.
22.Vigirdhan
S/o Srinivasan,
No.233, Periyar Street, Kadambathur,
Tiruvallur-631 203.
23.V.Naresh Babu
S/o T.Venkataramanan
No.55/163, Maduraisamy Madam Street,
Sembium, Perambur, Chennai-600 011.
24.K.Panneer Selvam
S/o M Karunanithi,
No.61/3, Perumal Koil Street, Annambedu,
Thirunindravur Post, Thiruvallur-602 024.
25.E.Raamadasan
S/o Ellan,
No.490/5, V.O.C Nagar, Tondiarpet,
Chennai-600 081.
26.Kaja Maideen
S/o Sahulhameed,
No.75/38, Subramaniya Thottam Main
Street North, Perambur, Chennai-600 011.
27.S.Sharan
S/o Srinivasan,
No.48, Srp Koil St North,
Thiru.Vi.Ka Nagar, Jawahar Nagar,
Chennai - 600 082.
______________
Page 4 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
28.R.Ravikumar
S/o Rajendran
No.95-45, Kathpada Main Road,
Basin Bridge, Chennai-600 021.
29.M.Suresh
S/o Manickam,
No.4, Sivasakthi Nagar 1st Main Road,
Kolathur, Chennai-600 099.
30.V.A.Sudhakar
S/o P.V. Ambikapathy
No.41a/73, Vasantha Garden 3rd Street,
Ayanavarm, Chennai-600 023.
31.Raja.G
S/o P.Govindasamy,
Plot No.1766, No.2, 29th Street,
Poombuhar Nagar, Chennai-600 099.
32.Sivagnanasam
S/o Thirumalaisamy,
No.23, J Apartments, Ground Floor
D Hospital Road, Kannamma Pettai,
Caveri Nagar, T Nagar, Chennai-600 017.
33.K.Elumalai
S/o Kullappan,
No.32, Kadappa Road, New Lakshmipuram,
Kolathur, Chennai-600 099.
34.A.Raji
S/o Anthony Samy,
No.3f-1, Avenue Garden, 14/6,
Balamurugan Street, Vyasarpadi,
Chennai-600 039.
______________
Page 5 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
35.Farmer Jayaraman.S K J.
S/o Kanjaamalai,
Plot No. 11, Kumaraguru Avenue,
Sulaiman Nagar, 3rd Street, Mettukkkupam,
Okkiyam, Thoraipakkam, Chennai - 600 097.
36.R.Balaji
S/o Ravi
No.177, Demellows Road, Pattalam,
Perambur Barracks, Chennai-600 012.
37.S.Balachandar
S/o Sivaprakasam,
No.19/41, Madurai Street, Ayanavaram,
Chennai-600 023.
Respondent(s)
PRAYER : Petition filed under Article 226 of the Constitution of India
seeking (a) issuance of a writ of certiorarified mandamus to call for the
records of the third respondent leading to the issuance of the order
bearing RC No.B/2002/2026, dated 5.8.2026 and quash the same and
consequently direct the respondents to conduct 100% counting of
VVPAT (Voter Verifiable Paper Audit Trail) slips relating to No.13,
Kolathur Assembly Constituency for the Tamil Nadu Legislative
Assembly Election 2026, and the checking and verification of all 286
machines deployed in No.13, Kolathur Assembly Constituency in the
Tamil Nadu Legislative Assembly Election 2026, within a time frame
fixed by this court; and (b) issuance of a writ of declaration to declare
the election of the fourth respondent as the Returned Candidate for
No.13, Kolathur Assembly Constituency in the Tamil Nadu Legislative
Assembly Election 2026 as void and consequently declare the writ
______________
Page 6 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
petitioner as the Returned Candidate for No.13, Kolathur Assembly
Constituency in the Tamil Nadu Legislative Assembly Election 2026.
For Petitioner(s): Mr.Kapil Sibal
Senior Counsel [Thru VC]
and Mr.J.Ravindran
Senior Counsel
for M/s.Aruna Elango and
Agilash Kumar
For Respondent(s):Mr.Dama Seshadri Naidu
Senior Counsel [Thru VC]
and Mr.G.Rajagopalan,
Senior Counsel
for Mr.Niranjan Rajagopalan
Standing Counsel
for R1 to R3
Mr.V.Raghavachari
Senior Counsel
for M/s.Dixita Gohil,
Pranjal Agarwal,
Yash S.Vijay for R4
Mr.G.Murugendran
for R37
ORDER
THE CHIEF JUSTICE
This writ petition has been filed by M.K.Stalin, who contested
the recent general election to the 17th Tamil Nadu Legislative
Assembly from No.13, Kolathur Assembly Constituency as the
official candidate of the Dravida Munnetra Kazhagam, seeking to
______________
Page 7 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
quash the order dated 05.08.2026 passed by the third respondent,
the District Election Officer, Greater Chennai Corporation, bearing
RC No.B/2002/2026, by which the post-result process of Checking
and Verification of the burnt memory/microcontroller of Electronic
Voting Machines and Voter Verifiable Paper Audit Trail units
pertaining to fourteen polling stations in the said constituency was
certified as having been “ successfully completed in accordance with
the prescribed procedures ”. The petitioner has also prayed for a
direction for 100% counting of VVPAT slips, for a direction to
preserve CCTV footage and connected records, and, going further,
for a writ of declaration that the election of the fourth respondent,
the returned candidate, be declared void and that the petitioner be
declared the duly elected candidate from the said constituency.
2.1. Before adverting to the rival contentions, it is necessary
to briefly set out the facts, which are drawn substantially from the
petitioner’s own affidavit filed in support of the writ petition.
2.2. The Election Commission of India notified the general
election to the Tamil Nadu Legislative Assembly on 30.03.2026. The
______________
Page 8 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
petitioner filed his nomination on the same date and contested from
No.13, Kolathur Assembly Constituency on the symbol “ Rising Sun ”.
Polling took place on 23.04.2026 and counting on 04.05.2026. On
the latter date, the fourth respondent, the nominee of Tamilaga
Vettri Kazhagam, was declared elected. The petitioner secured the
second highest number of votes.
2.3. The petitioner relies on the judgment of the Supreme
Court in Association for Democratic Reforms v. Election Commission
1
of India , by which certain directions were issued for a post-result
mechanism permitting the candidates placed at serial numbers 2
and 3, behind the returned candidate, to seek checking and
verification of the burnt memory of the Control Unit, Ballot Unit and
VVPAT in 5% of the machines used in the constituency, for any
tampering or modification. Pursuant to these directions, the Election
Commission issued an Administrative and a Technical Standard
Operating Procedure, the latest consolidated version being dated
17.06.2025.
1 (2025) 2 SCC 732
______________
Page 9 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
2.4. On 07.05.2026, the petitioner applied for such checking
and verification in respect of fourteen polling stations, being 5% of
the 286 polling stations in the constituency, and deposited the
prescribed fee. The process commenced only on 29.07.2026, after a
delay of nearly three months, and continued until 05.08.2026, when
the third respondent addressed the impugned communication to the
petitioner enclosing certified copies issued by the engineer of Bharat
Electronics Limited in respect of the fourteen polling stations,
declaring the process to have been carried out successfully.
2.5. In the course of the verification, the petitioner’s
authorised representative raised several objections. It was pointed
out that the VVPAT units at Polling Station Nos.28 and 75
malfunctioned during the confirmatory mock poll; that the EVM
carrying cases relating to Polling Station No.157 bore blank or
irregularly sealed address tags, said to be in breach of Rule 49-T of
the Conduct of Elections Rules, 1961; that two ballot units at Polling
Station No.79 did not tally with the recorded address tags; and
that, at Polling Station No.208, the Control Unit failed, on the very
date of the impugned order, to detect a Ballot Unit said to bear the
______________
Page 10 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
petitioner’s name. The petitioner also complains that eighteen
technical clarifications sought from the Bharat Electronics Limited
engineer, and a request for the video recording of the proceedings,
were left unanswered, and that no signed technical failure report
was furnished in respect of any of these occurrences.
2.6. On this foundation, the writ petition has been filed,
praying, in substance, for three sets of reliefs: first, a writ of
certiorarified mandamus quashing the impugned order dated
05.08.2026 and directing 100% counting of VVPAT slips for the
constituency, together with checking and verification of all 286
machines deployed therein; second, a direction to preserve CCTV
footage, custody registers, address tags and allied material; and
third, a writ of declaration that the election of the fourth respondent
as the returned candidate be declared void, and that the petitioner
be declared the duly elected candidate for No.13, Kolathur
Assembly Constituency.
______________
Page 11 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
3. When the matter was taken up, a preliminary objection was
raised on behalf of the Election Commission of India as to the very
maintainability of the writ petition.
4.1. Mr.Rajagopalan, learned Senior Counsel appearing for the
Election Commission, referring to Article 329(b) of the Constitution
of India and Section 80 of the Representation of the People Act,
1951, he submitted that the writ petition, in substance and effect,
calls in question the election of the returned candidate and is,
therefore, barred.
4.2. It is further submitted that the prayer for a recount,
under the guise of 100% counting of VVPAT slips, is premature and
not feasible to be considered in writ jurisdiction without the
foundational facts, which ordinarily are required to be established
before an Election Tribunal.
4.3. It is also submitted that the petitioner, if aggrieved, ought
to have filed an election petition within forty-five days as prescribed
under Section 80 of the Act, and cannot, merely because that
______________
Page 12 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
period has since elapsed during the pendency of the administrative
verification process, invoke the extraordinary jurisdiction of this
Court to circumvent the bar.
4.4. He further submitted that, if writ petitions are
entertained, it would amount to opening a Pandora’s box, permitting
every candidate placed second or third, dissatisfied with the
outcome of the post-result verification exercise, to bypass the
statutory forum and rush to this court, thereby defeating the very
scheme of the Act.
5.1. Mr.Dama Seshadri Naidu, learned Senior Counsel, also
appearing for the Election Commission of India, addressed the
Court on the same preliminary objection and elaborated upon it
further. Learned Senior Counsel submitted that the writ petition,
though outwardly framed as a challenge to an administrative order
certifying the completion of the verification process, is, on a fair
reading, an alchemy of artful drafting designed to circumvent Article
329(b) of the Constitution of India.
______________
Page 13 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
5.2. He drew attention to paragraph 38(f) of the affidavit,
where the petitioner has expressly pleaded that the bar under
Article 329(b) of the Constitution of India does not apply because
the writ petition does not “ call in question ” the election, but is
directed only at the verification process, and to paragraph 41,
where reliance is placed on a decision of the Supreme Court in
2
K.Venkatachalam v. A.Swamickan , for the proposition that Article
226 of the Constitution of India may be invoked notwithstanding
Article 329(b) of the Constitution of India, where the impugned act
is contrary to law or the Constitution and no other remedy is
available. Learned Senior Counsel submitted that these very
paragraphs, far from assisting the petitioner, betray the true
character of the relief sought, which is nothing short of a
declaration that the election of the returned candidate is void and
that the petitioner be declared elected in his place, a relief that lies
at the very heart of an election dispute and can be granted, if at all,
only by an Election Tribunal in a duly instituted election petition.
2 (1999) 4 SCC 526
______________
Page 14 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
5.3. Learned Senior Counsel further relied upon Section 97 of
the Act, which deals with recrimination by the returned candidate or
any other party when a declaration is sought that a candidate other
than the returned candidate has been duly elected. He pointed out
that the petitioner has impleaded thirty-three other contesting
candidates as parties, and submitted that this itself confirms that
what the petitioner truly seeks is a determination that he ought to
be declared elected, a determination that necessarily attracts the
procedural safeguards, including notice of recrimination, available
only in the trial of an election petition, and wholly foreign to a writ
proceeding.
5.4. Learned Senior Counsel also relied upon Section 100 of
the Act, and, in particular, sub-clauses (iii) and (iv) of clause (d) of
sub-section (1), which speak of improper reception, refusal or
rejection of votes, and of non-compliance with the provisions of the
Constitution of India, the Act or the Rules materially affecting the
result of the election. He submitted that the very irregularities
pleaded by the petitioner, such as malfunctioning VVPAT units,
alleged breach of Rule 49-T of the Rules, and the non-detection of a
______________
Page 15 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
ballot unit by the Control Unit, are grounds that fall squarely within
these statutory provisions, and that sub-clause (iv), being a
residual clause, would in any event cover them. Such grounds,
according to learned Senior Counsel, are triable only upon evidence,
and require proof that the result of the election, insofar as it
concerns the returned candidate, has been materially affected, an
exercise wholly unsuited to writ jurisdiction.
5.5. Learned Senior Counsel further submitted that the
decision in Association for Democratic Reforms (supra), heavily
relied upon by the petitioner, is distinguishable on facts, and does
not assist the petitioner’s case on maintainability, particularly
having regard to the observations of the Supreme Court at
paragraph 89 thereof, which reads thus:
“89. .... In arguendo, even if the CCE Report is taken
on face value and it is believed that the EVM-VVPAT
system can be hacked, can it be said that there is
absence of a redressal mechanism for the same?
Should there be hacking, resulting in violation of
a right of an elector in any manner, and if there
be proof adequate enough to upturn an election
result, the law already has in place a remedy i.e.
______________
Page 16 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
an election petition under Section 80 of the RoP
Act. Such an election petition can be filed not just
by an aggrieved candidate, but also by a voter,
within 45 (forty-five) days from the date of
declaration of the result of election. Since there is
already a remedy in law to allay the fears that
have been expressed by the petitioners, if and
when a discrepancy in the results arises, the
courts are not powerless to uphold the sanctity of
the democratic process by appropriate
intervention .”
[emphasis supplied]
He submitted that the said judgment introduced the post-result
verification mechanism as an additional safeguard for public
confidence in the EVM system, and did not, even remotely,
contemplate that an order passed under that mechanism could be
assailed under Article 226 of the Constitution of India in a manner
that bypasses the statutory election petition remedy.
5.6. He also placed strong reliance on a decision of the
3
Supreme Court in Election Commission of India v. Ashok Kumar ,
for the proposition, culled out from the two Constitution Bench
3 (2000) 8 SCC 216
______________
Page 17 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
4
decisions in N.P.Ponnuswami v. Returning Officer and Mohinder
5
Singh Gill v. Chief Election Commissioner , that intervention under
Article 226 of the Constitution of India during or after the election
process is permissible only in the narrowest of circumstances, and
that a clear case of mala fides , together with the absence of any
effect of retarding or protracting the election proceedings, must be
made out before such intervention is countenanced. He submitted
that no case of mala fides has been pleaded against the Election
Commission or its officers anywhere in the affidavit, and that, on
the contrary, the entire grievance is one of alleged procedural
irregularity and non-application of mind, which are matters that fall
squarely within Section 100 of the Act and are triable only by the
Election Tribunal.
6.1. Mr.Kapil Sibal and Mr.J.Ravindran, learned Senior Counsel
appearing for the petitioner, resisted the preliminary objection.
Learned Senior Counsel submitted that the writ petition is directed
not against the conduct of the election or its result, but against a
distinct and separate post-result administrative process, viz., the
4 AIR 1952 SC 64
5 (1978) 1 SCC 405
______________
Page 18 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
checking and verification of the burnt memory of the EVMs, which
the Supreme Court itself, in Association for Democratic Reforms
(supra), has recognised as a mechanism independent of the election
proceedings.
6.2. It is submitted that the impugned order is vitiated by
non-application of mind and breach of natural justice, that vital
evidence in the form of CCTV footage and custody records is liable
to be lost unless preserved by an order of this Court, and that the
forty-five day period for filing the election petition having lapsed on
account of the delay attributable to the respondent authorities
themselves, the petitioner has no other efficacious remedy.
6.3. Reliance is placed on the decision in K.Venkatachalam
(supra) in support of the submission that Article 226 of the
Constitution of India remains available where the act complained of
is contrary to law and no recourse can be had to the provisions of
the Act for appropriate relief.
______________
Page 19 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
7. Having heard learned Senior Counsel on both sides at
length, and having perused the affidavit filed in support of the writ
petition, the impugned order and its enclosures, and the judgments
relied upon by the parties, the short question that falls for
consideration is whether the present writ petition, as framed, is
maintainable, or whether it is barred by Article 329(b) of the
Constitution of India read with Section 80 of the Representation of
the People Act, 1951.
8. It is well settled that the word “ election ” occurring in Article
329(b) of the Constitution of India is used in a wide sense, so as to
connote the entire process which culminates in a candidate being
declared elected, commencing with the notification and ending with
the declaration of the result. It is equally well settled that where the
relief sought would have the effect of interrupting, obstructing or
protracting the election proceedings, or where it seeks, directly or
indirectly, an adjudication upon the validity of the declared result,
resort to Article 226 of the Constitution of India is impermissible,
and the grievance, however genuine, must await the institution of
______________
Page 20 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
an election petition, the sole remedy contemplated by the
Constitution and the Act for that purpose.
9. The present writ petition cannot, in our opinion, be said to
be confined to the post-result verification process alone. While the
body of the affidavit is, no doubt, structured around the alleged
infirmities in the checking and verification exercise, the reliefs
actually prayed for travel far beyond that exercise. The petitioner
does not merely seek a fresh or more thorough verification, he
seeks a declaration that the election of the fourth respondent, the
returned candidate, is void, and a further declaration that he
himself be declared the duly elected candidate for No.13, Kolathur
Assembly Constituency. These are reliefs that go to the very root of
the election and its result. No matter how the pleadings are
structured, a prayer of this description is, in substance, nothing but
a challenge to the correctness of the election and squarely attracts
the bar under Article 329(b) of the Constitution of India.
10. The submission of Mr.Dama Seshadri Naidu, learned
Senior Counsel, that the writ petition bears the character of artful
______________
Page 21 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
drafting is not without force. Paragraph 38(f) of the affidavit itself
anticipates and seeks to pre-empt the very objection now under
consideration, by asserting that the challenge does not “ call in
question ” the election. Such a self-serving characterisation cannot
determine the true nature of the proceeding, which has to be
gathered from the reliefs actually claimed, read as a whole. When a
petitioner asks this court to declare a duly notified return void, and
to declare himself elected in place of the returned candidate, he is
doing precisely what Article 329(b) of the Constitution of India
forbids him from doing outside the framework of an election
petition.
11. The reliance placed on Section 97 of the Act by learned
Senior Counsel for the Election Commission is well founded. A
prayer for a declaration that a candidate other than the returned
candidate has been duly elected is a distinct species of relief under
Part VI of the Act, attracting the procedure of recrimination,
whereby the returned candidate, or indeed any other contesting
candidate, may, upon notice, set up a case that the election of the
person claiming to have been duly elected would itself be void. This
______________
Page 22 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
is a safeguard built into the statutory scheme to ensure that no
candidate is declared elected without an opportunity being given to
every other candidate whose interest may be affected. The
petitioner’s own affidavit, by arraying thirty-three other contesting
candidates as respondents, tacitly recognises the need for such an
exercise. The said exercise, involving notice, recrimination and trial
on oral and documentary evidence, cannot be undertaken in a writ
petition and, in our considered view, it reinforces the objection to
maintainability.
12. The reliance on Section 100 of the Act is equally well
founded. The grounds now pressed before this Court, viz., the
alleged malfunction of VVPAT units during the mock poll, the alleged
breach of Rule 49-T of the Rules concerning address tags and seals,
and the non-detection of a ballot unit by the Control Unit, are
grounds falling within sub-clauses (iii) and (iv) of clause (d) of sub-
section (1) of Section 100 of the Act. As has been held in Ashok
Kumar (supra), sub-clause (iv) operates as a residual, catch-all
provision, taking within its fold any non-compliance with the
provisions of the Constitution, the Act or the Rules that is not
______________
Page 23 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
specifically covered elsewhere in Section 100 of the Act. Every one
of the irregularities pleaded by the petitioner would, if established,
fall to be examined under this provision, subject always to the
further requirement, built into Section 100 of the Act itself, that
such non-compliance be shown to have materially affected the
result of the election insofar as it concerns the returned candidate.
Such an inquiry that calls for a full-fledged trial, including expert
evidence on the technical functioning of the EVM and VVPAT units,
cannot be undertaken on affidavits in writ jurisdiction.
13. It is in this context that the submission on recount,
advanced by Mr.Rajagopalan, learned Senior Counsel, assumes
significance. The petitioner has, in effect, asked this Court to direct
100% counting of VVPAT slips and a fresh checking and verification
of all 286 machines in the constituency. Assuming arguendo that
such a course in a given case is warranted, it can only be ordered
by the Election Tribunal upon the petitioner first establishing,
through evidence, a prima facie case and not in writ jurisdiction,
where the Court has neither the material nor the procedural
apparatus to test the correctness of such a claim.
______________
Page 24 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
14. This Court has also considered the argument that, if writ
petitions of this nature are entertained, it would open a Pandora’s
box. There is substance in the apprehension. If every such anomaly,
as pleaded in this writ petition, is made a basis for filing the writ
petition seeking to unseat the returned candidate and to declare the
runner-up elected, the statutory scheme of election petitions,
hedged as it is with limitation, verified pleadings, security for costs
and recrimination, would be rendered wholly illusory. Every
defeated candidate placed second or third would have a ready
alternative to the election petition, and the finality that Article
329(b) of the Constitution of India seeks to secure for the
constitution of legislative bodies would be lost.
15. This brings the court to the petitioner’s reliance on
Association for Democratic Reforms (supra). The said judgment, as
the affidavit itself recites, was concerned with directions to
strengthen public confidence in the integrity of EVMs by providing
an additional post-result safeguard, permitting candidates placed
second or third to seek verification of a sample of machines.
______________
Page 25 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
Nothing in that judgment suggests that an order passed under the
resultant Standard Operating Procedure was intended to be
justiciable under Article 226 of the Constitution of India in
derogation of the statutory election petition remedy, or that the
Supreme Court intended to carve out, for this narrow category of
post-result verification, an exception to the constitutional bar under
Article 329(b) of the Constitution of India. The verification
mechanism was engrafted as an additional safeguard and not in
substitution of the remedy of an election petition and, in fact, if any
material is gathered during such verification, it would go to
strengthen the evidentiary foundation of an election petition, rather
than furnish an independent cause of action in writ jurisdiction. The
reliance placed on that judgment, therefore, does not advance the
petitioner’s case on maintainability.
16. Equally, the reliance on K.Venkatachalam (supra) does not
assist the petitioner. That was a case where a continuing
disqualification of a sitting member, arising after the declaration of
the result, was in issue, and the Supreme Court was concerned with
the question whether Article 226 of the Constitution of India could
______________
Page 26 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
be invoked to correct a continuing wrong in the teeth of Article
329(b) of the Constitution of India. The observations relied upon in
that judgment must be read in that context and cannot be
transplanted to a case such as the present, where what is assailed
is the very conduct of a post-poll verification process going to the
correctness of the count, and where the relief claimed is the
invalidation of the election and the substitution of the returned
candidate, which is a matter falling foursquare within Section 100 of
the Act.
17. For completeness, this Court records the submission of
Mr.Kapil Sibal, learned Senior Counsel, that the forty-five day period
prescribed under the Act has already elapsed by the time the
verification process itself was completed, and that the petitioner is
thereby left without a remedy. This Court is not persuaded that this
circumstance can enlarge the jurisdiction of this Court under Article
226 of the Constitution of India in the face of the express
constitutional bar under Article 329(b) of the Constitution of India.
Whether, and to what extent, the delay occasioned by the
verification process hinges on the computation of limitation under
______________
Page 27 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
the provisions of the Act, and whether any relief in that regard is
available to the petitioner, are matters that are to be examined by
the Election Tribunal in the first instance, upon an election petition
being presented, and this Court expresses no opinion on that
question one way or the other. Suffice it to observe that a difficulty
of this kind, even where genuine, is not a ground on which the
constitutional bar under Article 329(b) of the Constitution of India
can be circumvented. It is, at best, a ground to be urged before the
forum vested with jurisdiction to try the dispute.
18. For the reasons set out above, this Court holds that the
writ petition, in substance and effect, calls in question the election
of the fourth respondent as the returned candidate for No.13,
Kolathur Assembly Constituency, and is barred by Article 329(b) of
the Constitution of India read with Section 80 of the Act. The
remedy of the petitioner, if any, lies in an election petition before
the appropriate forum, where all the grounds now urged, including
those touching upon the Checking and Verification process, may be
agitated, subject to the petitioner establishing that the alleged non-
compliance has materially affected the result of the election.
______________
Page 28 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
19. In view of the above finding on maintainability, this Court
does not consider it necessary to examine the merits of the
allegations levelled against the Checking and Verification process, or
the correctness of the impugned order dated 05.08.2026 and,
therefore, express no opinion thereon. All contentions on merits,
including those relating to the alleged breach of Rule 49-T of the
Rules, the malfunction of the VVPAT units, and the non-detection of
the ballot unit at Polling Station No.208, are left open to be urged
before the appropriate forum, if so adviced.
The writ petition is, accordingly, dismissed as not
maintainable, with liberty to the petitioner to pursue such remedy
as may be available to him in law. There shall be no order as to
costs. Connected miscellaneous petitions, if any, are closed.
(SUSHRUT ARVIND DHARMADHIKARI,CJ) (G.ARUL MURUGAN,J)
03.09.2026
Index : Yes
Neutral Citation : Yes
sasi
______________
Page 29 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
To:
1. The Election Commission of India
Nirvachan Sadan, Ashoka Road,
New Delhi - 110 001.
2. The Chief Electoral Officer
Public (Elections) Department, Secretariat,
Fort St.George, Chennai - 600 009.
3. The District Election Officer
Greater Chennai Corporation
Chennai - 600 003.
______________
Page 30 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )

2026:MHC:3609
W.P.No.34892 of 2026
THE HON'BLE CHIEF JUSTICE
AND
G.ARUL MURUGAN,J.
(sasi)
W.P.No.348 92 of 2026

03.09.2026
______________
Page 31 of 31
https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/09/2026 11:35:10 am )