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IN THE SUPREME COURT OF INDIA

ORDER XXI RULE 3(1) (a)

CIVIL APPELLATE JURISDICTION

PETITION FOR SPECIAL LEAVE TO APPEAL

(Under Article 136 of the Constitution of India)

SPECIAL LEAVE PETITION (CIVIL) NO. ______ OF 2019

(WITH PRAYER FOR INTERIM RELIEF)

IN THE MATTER OF:

T. T. V. DHINAKARAN. ….Petitioner

Versus

THE ELECTION COMMISSION

OF INDIA & ORS. ……Respondents

POSITION OF THE PARTIES

Between In the High In this Hon’ble

Court Court

T. T. V. Dhinakaran Petitioner Petitioner

S/o Sh. T. Vivekanandam

5, Fourth Street,

Venkateshwara Nagar,

Karpagam Gardens, Adayar,

Chennai – 600 020

Tamil Nadu.
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Versus

1. Election Commission of India, Respondent Respondent

NirvachanSadan, Ashoka Road, No. 1 No. 1

New Delhi – 110001

2.
Through Secretary

E. Madhusudhanan Respondent

3. S/o Sh, Shasaiya Naidu, Respondent No. 2

R/o No. 41, Kothanda, No. 2

Raman Street,

4. Chennai- 600 021

Tamil Nadu. Respondent Respondent

No. 3 No. 3

O.Paneerselvam
5.
S/o Sh. OttakarThevar

R/o No. 31, Thenpennai,

Greenways Road, Respondent

Chennai – 600 028. Respondent No. 4

6.
S. Semmalai No. 4

311, AlaguVinayagar,

Alagapuram,
Respondent
Salem – 636 004
Respondent No. 5
Tamil Nadu.
No. 5

Edappadi K. Palaniswami,
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S/o Late Shri M. Karuppa Respondent
Respondent
Gounder, Residing at No. 9, No. 6
No. 6
SevvanthiIllam, Greenways

Road, Chennai 600 018

Tamil Nadu

Mrs. V.K. Sasikala

W/o Sh. M. Natrajan,

Permanent resident of 81,

Poes Garden, Chennai –600 086

Presently Lodged at

Parappana Agrahara Jail,

Bengaluru,

Karnataka – 560 100

All are contesting Respondents except Respondent No. 6

To

HON’BLE THE CHIEF JUSTICE AND HIS

HON’BLE COMPANION JUSTICES OF THE

HON’BLE SUPREME COURT OF INDIA.

THE HUMBLE APPLICATION OF

THE PETITIONER ABOVENAMED

MOST RESPECTFULLY SHOWETH:

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1. That the Petitioner is filing the instant petition seeking Special

Leave to Appeal under Article 136 of the Constitution of India

against the common impugned final Judgment and order dated

28.02.2019 passed by the Hon’ble High Court of Delhi at New

Delhi in W.P. (C) 10728 of 2017, whereby, the Hon’ble High

Court has erroneously upheld the final judgment and order of the

Respondent No. 1 - Election Commission of India dated

23.11.2015 recognising the group led by the Respondents No. 2

to 4 and Respondent No. 5 as the All India Anna Dravida

Munnetra Kazhagam (AIADMK) and granting the ‘two leaves’

symbol to the said group.

1A. That no Writ Appeal or Letter Patent Appeal lies against the final

common judgement and order dated 28.02.2019.

2. QUESTIONS OF LAW:

The present SLP raises the following substantial questions of law

of public importance arise in the present petition:-

A. Whether mandate of paragraph 15 of the Symbols Order,

which requires the Commission to determine based on all

available facts and circumstances, as to which faction is

“that political party” necessarily requires application of

test of adherence to the party constitution?

B. Whether a group or a faction within a political party can

stake a claim to be that party for the purposes of paragraph

15 of the Symbols Order after having attempted to amend

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the basic tenets and structure of the rules and regulations of

such party?

C. Whether the Election Commission while deciding a dispute

under paragraph 15 of the Symbols Order is enjoined to

first ascertain which group continues to abide by the

constitution of the party, and thereafter apply the majority

test?

D. Whether the Election Commission is enjoined to direct

parties to first seek recourse to the remedies available

within the constitution of a political party?

E. Whether the judgment of this Hon’ble Court in Sadiq Ali

Vs Election Commission of India, reported at 1972 (4) SCC

664 restricts application of test of majority at the level of

the legislature and organisational wings of a party, even if

under the constitution of such party, the relevant majority

is that of the primary members?

F. Whether a petition before the ECI by a set of persons

claiming to be the party can be proceeded with, unless such

set of persons demonstrate at least prima facie, sizeable

support in their favour?

G. Whether subsequent events which allegedly show change

in stance by members of the party and large scale retraction

of earlier positions can be taken into consideration while

deciding which group enjoys majority support?

H. Whether any support pledged for a particular group, which

has sought to amend the very basic structure of the

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constitution of the original political party, can be

considered towards applying the test of majority in

determining which group represents the real party?

I. Whether the Election Commission, acting as a quasi

judicial tribunal and being bound to follow principles of

natural justice can rely upon material, which has prima

facie been demonstrated to be tainted by forgery and

fabrication, without undertaking an inquiry as to the

veracity of the same?

J. Whether the Election Commission is enjoined to afford an

opportunity of cross-examination and leading of evidence,

where a group demonstrates prima facie that the other

group has resorted to forgery, fabrication, coercion and

undue influence to engineer majority support in its favour

and also where affidavit of supports of the same persons

for both the groups are filed?

K. Whether without prejudice to the Petitioner’s claim that the

group led by the Petitioner was the real AIADMK, the ECI

and the Hon’ble High Court were enjoined to grant an

alternate name and symbol to secure to the Petitioner, his

right to carry out political activities as has been the past

practice of ECI?

3. DECLARATION IN TERMS OF RULE 3 (2):

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The Petitioners state that no other such or similar petition leave

to appeal has been filed by them against the common impugned

final Judgment and order dated 28.02.2019 passed by the Hon’ble

High Court of Delhi at New Delhi in W.P. (C) 10728 of 2017.

4. DECLARATION IN TERMS OF RULE 5:

The Annexures P - 1 to P 41 produced along with the Special

Leave Petition are the copies of the pleading / documents, which

formed part of the records in the High Court / Appellate

Tribunal/Courts below against whose order the leave is sought for

in this petition..

5. GROUNDS.

Leave to appeal is sought on the following grounds, amongst others,

without prejudice to each other:-

A. Because the Hon’ble High Court failed to consider that it was

admitted case of the parties that any alteration in basic structure

of the party constitution would render the party as a new being,

which argument was not at all considered by the ECI and the

Hon’ble High Court erroneously did not consider the effect of the

same.

B. Because the Hon’ble High Court erred in not taking into account

that ECI at different stages selectively applied different tests

which had the effect arriving at a particular outcome at all the

stages. At the stage of admission of the Petition, and freezing of

symbol on 22.03.2017, ECI applied the Test of Constitution,

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when overwhelming majority was in support of the petitioner,

however, while finally deciding the matter, not even a whisper

was made about the Constitution Test and it was held that only

test of majority is the relevant test.

C. Because the unfair action of the respondent no 1 ECI is further

evident when it denied a common symbol to the group led by the

Petitioner during the pendency of the present proceedings before

the Hon’ble High Court and thereby reducing the level playing

field and free and fair election. The same was corrected by this

Hon’ble Court speaking through Hon’ble Mr Justice A. M.

Khanwilkar, vide order dated 07.02.2019 held that for creating a

level playing field and for free and fair elections, the group led by

the Petitioner is entitled to a common symbol.

D. Because the Hon’ble High Court erred in coming to the

conclusion- that the contentions of the Petitioner regarding

Petition under para 15 of the Symbols Order, filed on 16.03.2017,

ought to have been summarily rejected because it had no material

particulars and supporting documents relating to material facts

are misplaced as there is a distinction between material facts and

material particulars and in this case material facts have been

pleaded. The Hon’ble High Court while coming to this conclusion

failed to appreciate that:

a) The bald averments made by a party cannot be taken as

material facts especially when they are controverted with

material particulars.
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b) In this case the “material facts” pleaded were that the

Respondent 2 to 4 had support of rank and file of the party

whereas it was their own admission in para 9.38. that they had

support of only 11 MLAs out of 134 and support of 12 MPs

out of 50 at the same time alongwith the reply filed on

22.3.2017 Petitioners produced affidavit of support of 122

MLAs and 37 MPs and 1912 out of 2040 General Council

members. Therefore, at this stage itself the Petition under para

15 should have been dismissed summarily.

c) The other alleged material fact pleaded was relating to

“subversion of rules” whereby Mrs. VK Sasikala (VKS) was

alleged to have usurped the post of General Secretary (GS)

and the control of the party.

(i) This fact could not have been treated as a material fact as

both the Commission as well as the Hon’ble High Court

have not found such fact to be relevant to the dispute and

expressly refrained from rendering any finding on such

fact;

(ii) The Petition and the reply thereto demonstrated that VKS

was appointed as GS on the basis of resolution moved and

supported by the Respondents. Further, there was

precedent in the Party of similar appointment when Late Dr

Jayalalitha was appointed in similar fashion.

E. Because the Hon’ble High Court erred in holding that the material

particulars could not be produced by Respondents as it was filed

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in utter haste due to upcoming bye elections. In this regard, it may

be noted that the allegations of subversion of rules related to

period of December 2016 which was almost 3 months prior to the

date of filing of the petition under para 15 on 16 th March 2017.

Further, The alleged urgency was a mere ruse as in any event, the

Respondents did not have any support, which is evident from the

fact that:

(a) The respondents had been expelled from party in February

itself, therefore there was no scope for the Respondents to

have garnered further support.

(b) In their petition before the Commission, it is their own

admission in para 9.38 that they had support of only 11 MLAs

out of 134 and support of 12 MPs out of 50. Whereas, on

22ndMarch 2017 Petitioners produced affidavit of support of

122 MLAs and 37 MPs and 1912 out of 2040 General Council

members.

F. Because the Hon’ble High Court erred in noting that “By the time

the matter was first listed on 22.3.2017 the affidavits in support

of respondents were already before the Commission” without

appreciating the contention of the Petitioners that on 22.3.2017

the respondents had support of only 11 MLAs out of 134 and

support of 12 MPs out of 50 whereas VKS had support of 122

MLAs and 37 MPs and 1912 out of 2040 General Council

members demonstrating that they did not have support of majority

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and in fact majority supported the Petitioner. This goes to show

that deliberate false and bald averments were made in the Petition.

G. Because the Hon’ble High Court erred in holding that there is no

internal party mechanism by which the dispute could have been

resolved because the party constitution provided that in case of

any dispute between members of the party, it was the GS whose

decision would be final. If there were to be a dispute with respect

to the office of the General Secretary itself, then this could have

been decided only by the primary members of the party, and

accordingly the dispute could have been resolved by issuing a

direction for elections to be held for the post of GS. In fact, one

of the prayers of the respondents in the petition before the

Commission itself was holding of fresh elections for post of GS,

which shows the admitted position as to how such dispute could

have been resolved.

H. Because the Hon’ble High Court erred in holding in para 39 that

para 15 of the Symbols order which gives Election Commission

power to decide as per all available facts and circumstances of

the case, also gives the Commission discretion to decide as to

what are the facts and circumstances which needs to be taken into

consideration. It is submitted that this finding is completely

erroneous as this will render the decision making arbitrary. The

Commission is bound to decide based on all the available facts

and circumstances placed before it. It has no discretion to choose

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selectively or ignore. Such an unguided unbridled discretion

would render the decision making arbitrary and same would be

contrary to the principles of rules of law.

I. Because after agreeing in paras 40 and 41 with the Petitioners that

test of majority is not the sole test in all disputes and that the

structure of the party has to be analysed to ascertain the relevant

and germane test, the Hon’ble High Court erred in holding in para

48 that as the party has a democratic set up and all powers are

derived directly or indirectly through elections from its primary

members; test of majority as per Sadiq Ali (i.e., majority in the

legislative and organizational wings) would be a relevant and

germane test. The Hon’ble High Court failed to appreciate and

analyse the pivotal aspect of the structure of the AIADMK, which

is that the GS would be elected by the primary members

notwithstanding the multi-tier structure of the party. Therefore,

the relevant and germane test of majority in the context of the

structure of the AIADMK, could have only been resolved by

testing the majority amongst the primary members, which

apparently was not applied either by the Commission or the

Hon’ble High Court. It may be relevant to note that the Petitioners

produced 7 lakh affidavits of primary members while the

Respondents only produced 1.68 lakh affidavits of primary

members.

J. Because the Hon’ble High Court erred in holding in para 41 that

the tests were merely recorded and had not been approved by
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Supreme Court in Sadiq Ali. It is stated that this finding is in

contradiction to the finding in the same para that “we are unable

to agree with the proposition that after Sadiq Ali the test of

majority is the sole test in all disputes.” This means that the other

tests recorded in Sadiq Ali by this Hon’ble Court could be applied

in given circumstances of the case.

K. Because it is wrong for the Hon’ble High Court to have concluded

in para 49 based on its observations in para 41 that the

applicability of the adherence to the party constitution was never

approved by the Supreme Court in Sadiq Ali. It is submitted that

it was recorded and approved but not applied in Sadiq Ali based

on facts and circumstances of that case.

L. Because assuming that the Hon’ble High Court is correct in

interpreting the judgment in Sadiq Ali to the effect that the test of

Constitution was not approved in Sadiq Ali, at the very least this

Hon’ble Court had opined that the test of constitution was a

relevant test in a given case. The Hon’ble High Court erred in

finding in para 49 that the said test was not relevant to the present

lis having regard to the structure of the party. The Hon’ble High

Court failed to appreciate that the test of Constitution has to be

applied in the context of the dispute, irrespective of the structure

of the party. Where the crux of the dispute both as raised

originally in the petition by the respondents, and as arose as a

result of subsequent acts of the respondents, was whether the

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party constitution had been followed, the Hon’ble High Court

erred in holding that the test of constitution was not relevant.

M. Because the Hon’ble High Court erred in holding that the

adherence to the party constitution was ineffectual and neutral in

the present case as the Petitioners and Respondents both seems to

have derogated from the same clauses of the party constitution.

In this regard, the Hon’ble High Court failed to appreciate that:

(i) The Petitioners have not derogated from the constitution of

the AIADMK. VKS was appointed as an interim General

Secretary, pending election of the GS by the primary

members of the party as per the rules and regulations of the

party. Appointment was occasioned given the emergent

situation that had arisen, following past precedent. Thus,

the Petitioners clearly demonstrated deference to the party

constitution. Further, appointment of the Petitioners was by

way of resolution moved by the respondents herein and

unanimously accepted by the General Council. Thus, it was

not an act that can be attributed to the Petitioners and hence

no act of the Petitioners could be said to have been in

derogation of the party constitution.

(ii) The validity of appointment of VKS as General Secretary

has been admitted, affirmed and acquiesced to, by each of

the respondents in various proceedings including before

the Hon’ble High Court and therefore, could not have been
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treated as a violation of the constitution at the behest of the

Respondents, by the Hon’ble Court.

(iii) The act of the Respondents has not merely derogated from

the party constitution but has destroyed the constitution of

the party. On 12.09.2017, the Respondents abolished the

post of General Secretary who is the backbone of the party,

replaced the same with the post of Coordinator and Joint

Coordinator and provided for their election through

General Council. Thereby, the Respondents effectively

abolished the provision of election of the highest

functionaries of the party by primary members altogether,

which is stipulated to be the basic structure of the party and

is stipulated to be unamendable.

(iv) The Hon’ble High Court itself noted in para 52 that there

was merit in the contention of the Petitioners that the

Respondents had derogated from the Constitution of the

party.

(v) Given the nature of the two acts, the Hon’ble High Court

committed a gross error placing at par, the act attributed to

the Petitioners with respect to appointment of an interim

General Secretary, with the act of the Respondents which

amounted to complete abrogation and abandonment of the

constitution of the party, and on the Respondents’ own

admission would “render the party an entirely new being”

[Para 9.5 of the petition before the Election Commission

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and para 15 of the Counter Affidavit before Hon’ble High

Court].

N. Because the Hon’ble High Court erred in finding that though

VKS was elected by GC on 29.12.2016 for more than 2 years no

elections have been conducted for the said post, without taking

note of the fact that EC was seized of the matter since March 2017

and a freeze order was passed on 22.03.2017 and on 23.11.2017

finally decided in favour of the respondents (who have abolished

the post of GS) and therefore, the issue of holding of fresh

elections to the post of GS did not arise.

O. BECAUSE the Hon’ble High Court erred in holding that the

decision as to which test is to be applied is the discretion of the

Commission, in as much as the Commission is bound by the

mandate in paragraph 15 of the Symbols Order, which requires

the Commission to determine based on all available facts and

circumstances, as to which faction is “that political party”. This

necessarily means that the Commission is bound to examine

which of the groups is adhering to the constitution of the party;

and if both groups are adhering to the constitution and aims and

objectives of the party, then which group enjoys the majority at

the appropriate levels depending upon the structure of the party.

P. BECAUSE the Hon’ble High Court has itself noted the mandate

in Sadiq Ali that the structure of the party has to be analysed to

ascertain the relevant and germane test. In that case, there is no

room for discretion and the Commission is bound to judicially

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determine the relevant and germane test, taking into account the

mandate of law in paragraph 15 of the Symbols Order and the

mandate contained in Sadiq Ali’s case.

Q. BECAUSE the Hon’ble High Court erred in para 54 in

disregarding the admissions of the Respondents with regard to

what constituted the basic structure of the party and as to the test

of constitution being the relevant and germane test in the facts of

the present case, on the ground that there is no estoppel against

law. The positions taken by the Respondents were positions of

fact and related to their understanding of the constitution of the

party, and did not pertain to issues of law. The fact that both

parties were ad idem on what constituted the basic structure of the

constitution was relevant, germane and essential for adjudication

as to which group was “that political party”.

R. BECAUSE the Hon’ble High Court has further completely

disregarded and omitted to deal with the effect of categorical

admissions on the part of the Respondents as regards the validity

of appointment of VKS as the General Secretary. The

Respondents have, at every stage, right from the time of

appointment of VKS as the GS up to the present, i.e., in the

proceedings before the Hon’ble High Court, admitted, accepted

and acquiesced to the validity of appointment of VKS as the GS.

Despite the same, the Hon’ble High Court did not deal with or

consider the effect of estoppel against the Respondents.

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S. BECAUSE the Hon’ble High Court erred in holding in para 58

that the Petitioners have changed their stand without appreciating

that the stand of the Petitioners has been consistent with the

principle that subject to adherence to the constitution, the test of

majority is the relevant test. On 22.03.2017, the Petitioners urged

application of the test of majority, as it is the position of the

Petitioners that at that stage, there was no contravention to the

constitution of the party. Whereas, the test of constitution (which

was urged after 12.9.2017 by the petitioner) became relevant on

account of subsequent abrogation of the constitution by the group

led by the Respondents on 12.09.2017, as in the face of

abandonment of the constitution by one group, the alleged

support to such group would be irrelevant and consequently, the

test of majority became irrelevant.

T. BECAUSE the Hon’ble High Court has erroneously dismissed

the contentions of the Petitioners regarding the test of constitution

being admitted to be the relevant test by the Respondents on the

ground that there is no estoppel against law, while at the same

time holding that the Petitioners were estopped from contending

that majority had to be tested qua the primary members of the

party. It is submitted that having held that the question as to which

test is relevant and germane is a question of law, the Hon’ble High

Court ought to have independently analyzed the structure of the

party to ascertain the relevant level at which the test of majority

was to be applied, irrespective of the contention of the Parties.

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U. BECAUSE the Hon’ble High Court has taken irrelevant facts into

consideration in para 60 while holding that the relevant and

germane test to be applied was majority in the organizational and

legislative wings. As noted by the Hon’ble High Court itself, the

structure of the party was the only relevant consideration, upon

analyzing which, it would have been evident that majority had to

be tested qua the primary members. Whereas the Hon’ble High

Court justified applying the test at the organizational and

legislative levels solely on the basis that there were several

members of the AIADMK in the legislative and organizational

wings.

V. BECAUSE the ECI and the Hon’be High Court have failed to

appreciate that test of Majority at organizational and legislative

levels simplicitor could not have been applied due to the

distinctions in the present case and in Sadiq Ali Case viz in Sadiq

Ali there was- (1) no factual dispute regarding figures of support;

(2) there was no alleged change of stand of delegates; (3) under

party constitution no one office bearer had absolute power and

control; and (4) the party involved was a National Party where

almost the entire voting population of the nation was primary

member.

In contradistinction, in the present case (1) figures of support are

seriously disputed; (2) A claim has been made by the respondent

no 2 to 5 regarding change in stand of organizational and

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legislative wing members (though disputed); (3) Under the Party

Constitution General Secretary has absolute powers and control

and is the sole representative of the Party- meaning thereby

Petitioner was undisputedly representing the Party; (4) clear

departure from the Party Constitution and the Aims by altering

the basic and fundamental features of the Party Constitution by

the respondents on 12.9.2017 (which even according to the

Respondents’ Petition would result in a new Party – Para 9.5 of

the Petition); and (5) AIADMK is a State Party with 1.5 crore

Primary members and ascertaining their wishes by a referendum

is a very easy task.

W. BECAUSE the Hon’ble High Court has in paras 62 and 63

erroneously approved selective reliance by the Commission upon

subsequent events. While holding that it was incumbent upon the

Commission to take into consideration the alleged subsequent

change in allegiances to persons, the Hon’ble High Court has not

given any reasons to justify the Commission having turned a blind

eye to the subsequent abrogation of the constitution of the party

by the respondents.

X. BECAUSE the Hon’ble High Court has erroneously noted in para

63 that the shifting of allegiances, post the meeting of 12.09.2017,

was brought to the notice of the Commission and it was therefore

incumbent upon the Commission to take the same into account.

The Hon’ble High Court failed to appreciate that on 21.09.2017,

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the Election Commission had suo moto called upon each of the

groups to furnish fresh affidavits without any application to such

effect having been made by either of the groups. Thus, there was

no question of any shifting of allegiances having been brought to

the notice of the Commission.

Y. BECAUSE the Hon’ble High Court failed to appreciate the

significance of the fact that despite holding itself bound to dispose

of the petition expeditiously, the Commission suo moto directed

the parties to file fresh affidavits. Even assuming that

Commission ought to have taken note of subsequent events in

consonance with the judgment in Sadiq Ali, the Hon’ble High

Court failed to appreciate the angle of malice involved inasmuch

as even though there was no suggestion or communication as to

shift in allegiances, the Commission nevertheless decided to

invite fresh affidavits and restrict its consideration to only such

fresh affidavits.

Z. BECAUSE in para 73, having agreed that it was not open to the

Commission to hold that denying right of cross examination

would not prejudice the Petitioners, the denial of cross

examination was not found fault with by the Hon’ble High Court

on the ground that the Commission was required to act with

certain promptitude. The said reasoning of the Hon’ble High

Court justifying denial of natural justice is devoid of any merit

and contrary to established principles of law that a decision can

be sustained only if the decision making is an outcome of a fair

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hearing, based on procedure known to law, which includes

observance of the principles of natural justice.

AA. BECAUSE in para 74, the Hon’ble High Court has

completely mis-appreciated the facts while erroneously holding

that request for cross examination was belated on the basis that

such request was made only on penultimate day, i.e., on

03.10.2017, inasmuch as the affidavits wherein alleged

retractions were made leading to seeking of cross examination,

were filed before the Commission only three days earlier, i.e., on

29.09.2017. Therefore, the request was made with promptness

and at the earliest opportunity and the Hon’ble Court erred in

holding that the pleas of the Petitioners were frivolous.

BB. BECAUSE the Hon’ble High Court erred in rejecting the

contention that affidavits were fabricated, false and obtained

under duress and undue influence as the subsequent affidavits of

retraction clearly stated the circumstances for filing the previous

affidavits and change in stand and therefore cannot be termed as

affidavits of retraction. This is because:

(i) Firstly, there were several members who swore before the

Commission that they had never signed the subsequent

affidavits/ they had signed such affidavits under coercion

and undue influence. However, the Commission did not

even call upon such persons to examine them although they

were present before the Commission;

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(ii) Secondly, when persons made a specific averment, a

reasonable doubt as to the correctness of the affidavits

showing change of allegiance was made out pointing

towards a retraction, necessitating cross examination and

no such finding that there was no retraction can be made in

the absence of such cross examination.

CC. BECAUSE the Hon’ble High Court failed to appreciate

that the issues highlighted by the Petitioners in the application

seeking cross examination was not with respect to one single

affidavit, rather it related sample of more than 500 affidavits of

around 2,000 affidavits, which were disputed on different

grounds, i.e., forgery/ fabrication in some cases, and undue

influence and duress in other cases. Therefore, the Hon’ble High

Court erred in holding that the contentions of the Petitioners in

this regard were mutually destructive.

DD. BECAUSE the Hon’ble High Court erroneously presumed that

rejection of the opportunity to cross examine had not prejudiced

the case of the Petitioners on the ground that it would not have

had substantial effect on the position with respect to majority

enjoyed by the faction led by the Respondents and it would be

useless to remand the matter to the Commission. The Hon’ble

High Court has erred in holding that only 325 affidavits were

disputed by the Petitioners, whereas, the Petitioners had clearly

specified that upon a sample survey, they had found many

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infirmities, which was sufficient to throw into doubt, the veracity

of all affidavits. The Commission had itself noticed infirmities in

126 affidavits. In any event, the Commission had only examined

the signatures in the affidavits giving a go-bye to other serious

allegations raised by the Petitioners.

EE. BECAUSE the the Respondents No. 2 to 5 rendered themselves

disentitled from any relief by virtue of their own pleadings,

admissions and conduct.

FF. Because the Hon’ble High Court also erred in not appreciating

that the order of ECI was tainted because of acceptance of

fabricated and untested material as genuine.

GG. Because in the present case, the Petitioners have alleged that

offences have been committed under Sections 177, 181, 182, 193,

195A, 196 and 471, IPC. As per Section 195(1), no Court can take

cognizance of any such offence unless the concerned public

servant or Court lodges a complaint in this regard. It is therefore

submitted that the Election Commission committed a manifest

error in not taking any action on the complaints/ applications of

the Petitioners, thereby depriving them of a remedy under the law.

HH. Neither the Hon’ble High Court nor Election Commission in the

impugned judgment, or the counsel for Respondent Nos. 2 to 5,

in the course of their arguments before this Hon’ble Court, have

dealt with Section 182 IPC at all or addressed why the same is not

applicable to the present case. It is respectfully submitted that in

the facts of the present case, Section 182 is clearly applicable.

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II. In Daulat Ram v. State of Punjab, (1962) Supp 2 SCR 812, the

Hon’ble Supreme Court was dealing with a situation where a

person wrote a letter to the Tehsildar alleging that he had been

beaten up and robbed by two persons which, upon investigation

by the police, was found to be false, and hence a prosecution

under Section 182 IPC was launched against him. The Court held

as follows: “Now the offence under Section 182 of the Penal

Code, if any, was undoubtedly complete when the appellant had

moved the Tahsildar for action. Section 182 does not require that

action must always be taken if the person who moves the public

servant knows or believes that action would be taken. In making

his report to the Tahsildar therefore, if the appellant believed that

some action would be taken (and he had no reason to doubt that

it would not) the offence under the section was complete.”

JJ. In the present case, the Election Commission held that the bar

under Section 195(1)(b) applies only in relation to a “Court”,

whereas “It is clear that Symbols Order Para 15 proceedings

before the Commission are not “proceedings in a court” [para 54

ECI order]. It is submitted that the above reasoning is completely

perverse and a gross oversimplification of the position enjoyed by

the Election Commission under law. The Election Commission

has been set up in terms of Article 324 of the Constitution and the

Representation of Peoples Act, and is vested with certain judicial

powers. Its powers, under Section 146(1)(a) and (c) of the

Representation of Peoples Act, inter alia include summoning and

enforcing the attendance of any person and examining him on

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oath, and receiving evidence on affidavits. Under Section 156(3),

the Commission is deemed to be a civil court for certain purposes

and, as per Section 156(4), “Any proceeding before the

Commission shall be deemed to be a judicial proceeding within

the meaning of section 193 and section 228 of the Indian Penal

Code”.

KK. BECAUSE the focus of the Petition filed by the Respondents No.

2 to 4 before the ECI was the allegedly illegal appointment of the

Respondent No. 6 as General Secretary in contravention of the

Constitution of the AIADMK. The said stand was diametrically

opposite to the conduct of the Respondents No. 2 to 4, inasmuch

as they themselves proposed the appointment of Respondent No.

6 as General Secretary in the meeting of the General Council

convened on 29.12.2016. This fact was deliberately suppressed in

the respondents in Petition before the ECI and not at all

considered by both the High Court and ECI.

LL. BECAUSE the Respondents No. 2 to 4 further deliberately

suppressed the fact that in a Suit bearing CS No. 958 of 2016 filed

before Madras High Court to challenge convening of General

Council meeting to elect the Respondent No.6 as General

Secretary, Respondent No. 2 had filed an Affidavit defending the

eligibility of Respondent No.6 to be appointed as General

Secretary.
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MM. BECAUSE the Respondents No. 2 to 4 further deliberately

suppressed the fact that they had already been expelled from the

AIADMK in terms of the Rules and Regulations of the AIADMK.

Thereby, the Respondents No. 2 to 4 had no locus to maintain the

Petition before the ECI.

NN. BECAUSE even subsequently, the Respondents No. 2 to 4 have

acknowledged and acquiesced that the appointment of

Respondent No. 6 on 29.12.2016 as General Secretary was valid

and legal. This is evident from the notice dated 28.08.2017 as well

as Resolution No. 8 passed in the illegal meeting of the alleged

General Council dated 12.09.2017, where it was unequivocally

recorded that the Respondent No. 6 was appointed as the General

Secretary on 29.12.2016.

OO. BECAUSE the Respondent No. 5 had sworn an affidavit in the

same proceedings before the ECI affirming that the Respondent

No. 6 was validly appointed as the General Secretary and the

Petitioner was validly appointed as the Deputy General Secretary.

The Respondent No. 5 had further affirmed in the said affidavit

that the claims of the Respondent No. 2 who was expelled from

the AIADMK are without any merit.

PP. BECAUSE the Hon’ble High Court failed to appreciate that

having themselves admitted to the valid appointment of the

Respondent No. 6 as General Secretary, the Petition before the

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ECI could not be maintained by the Respondents No. 2 to 4.

Further, the Respondent No. 5 having actively opposed the stand

of the Respondents No. 2 to 4 could not have been permitted to

join the Respondents No. 2 to 4 and urge any matter in their

support.

QQ. BECAUSE the entire premise of the Petition filed before the ECI

was that the Petitioner and the Respondent No. 6 had violated the

Constitution of the AIADMK. The primary contention urged by

the Respondents No. 2 to 4 was that the General Secretary is

supreme under the Constitution of the AIADMK and that election

of the General Secretary by the primary members of the

AIADMK is the basic structure of the Constitution of AIADMK

and appointment of Respondent No. 6 by members of the General

Council was entirely illegal. To this end, the Respondents No. 2

to 4 categorically averred that:

“Rule 20(ii) of the Bye-laws clearly states that the General

Secretary will be elected by all the Primary Members of

the party and Rule 43 of the Bye-laws lays down that the

election procedure as laid down in Rule 20(ii) is

sacrosanct and immutable. The General Council oversees

the policy decisions of the Kazhgam but the power vested

in the General Council as per Rule 19(viii) as “supreme

authority to frame policies and programmes of the party”

cannot and does not undermine the ultimate authority of

Rule 20(ii). Further, Rule 43 upholds the basic structure

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of the party, the amendment of which will render the

party an entirely new being.”

RR. BECAUSE having acknowledged the basic structure of the

Constitution of the AIADMK, amendment to the Constitution of

the AIADMK at the behest of the Respondents No. 2 to 4 and

Respondent No. 5, by abolishing the post of General Secretary

and providing for appointment by the General Council of the

Coordinator and Joint Coordinator who would have all the powers

of the General Secretary, amounts to an admission that the

Respondents No. 2 to 5 had violated the Constitution of the

AIADMK.

SS. BECAUSE even in their Counter-Affidavit before the Hon’ble

High Court, the Respondents No. 2 to 4 have acknowledged and

affirmed that the requirement for election of the General

Secretary by the primary members of the party, as envisaged

under Rule 20(iii) of the Byelaws of the AIADMK constituted

part of the basic structure of the party. The Respondents No. 2 to

4 averred that:

“Rule 43 upholds the election procedure laid down in Rule 20(ii) as

the basic structure of the party, the amendment of which

will render the party an entirely new being.”

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TT. BECAUSE if the test of majority in the organizational and

legislative wings of the AIADMK were to be applied then the

Petition ought to have been dismissed on the very first day as

admittedly, in the Petition, the Respondents No. 2 to 4 claimed

the support of about 11 MLAs (out of 134) and 12 MPs (out of

50). No material was in any event furnished to demonstrate such

support.

UU. BECAUSE not only did the ECI entertain the Petition despite no

demonstration of support, it proceeded to pass an interim order

on 22.03.2017 freezing the ‘two leaves’ symbol, primarily on the

ground that a deeper examination and closer look at the

Constitution of the AIADMK was necessary. However, in the

final adjudication, the ECI completely abandoned the test of

adherence to the Constitution of the AIADMK by the rival

factions and did not even render a finding on the very issues that

led the ECI to postpone its final decision.

VV. BECAUSE had the test of majority in the legislative and

organizational wings been considered relevant by the ECI, then

no such interim order could have been passed by the ECI and the

Petition ought to have been dismissed at least on 22.03.2017, as

at that stage, the Petitioner and the Respondent No. 6 filed

affidavits of support of:

(a) 122 out 134 Members of Legislative Assembly of Tamil

Nadu,
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(b) 27 out of 37 Members of Lok Sabha and 10 out of 13

Members of Rajya Sabha,

(c) 1912 out of 2141 General Council Members,

(d) 50 out of 50 District Secretaries.

WW. BECAUSE the Hon’ble High Court failed to appreciate that the

ECI having framed the issue as to whether or not the Constitution

of the AIADMK had been violated by either of the group ought

to have decided the same before proceeding to apply any other

test. Since this issue was left completely unanswered, the Hon’ble

High Court ought to have, at the very least, remanded the matter

for fresh consideration by the ECI.

XX. BECAUSE in the meeting convened on 12.09.2017, the

amendments illegally and purportedly made to the Constitution

of the AIADMK at the behest of the Respondents No. 2 to 5

destroyed its basic structure and hence the Respondents No. 2 to

5 could never claim to be “that party”, i.e., the AIADMK.

YY. BECAUSE under the Constitution of the AIADMK, the General

Secretary is the backbone of the party and the most important and

plenipotentiary functionary, which is evident from the following:

(i) The General Secretary is responsible for the entire

administration of the party, to implement its policies and

programmes, to manage its income and expenditure, take

the final decision on disciplinary proceedings, sign the

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authorization forms for allotment of symbol to contesting

candidates etc. The power of the General Secretary is

absolute and cannot be questioned by any member. [Rule

20]

(ii) The key functionaries are nominated by the General

Secretary, such as Deputy General Secretaries, Treasurer

and Headquarters Secretaries, [Rule 20(iii)] ], members of

the Parliamentary Board, which shall select candidates for

all elections [Rule 29] etc.

(iii) General Secretary also has the power to approve

memberships. A member shall cease to be a primary

member of the Party if he/she resorts to any Court

proceedings against the decision of the Party General

Secretary. General Secretary is empowered to represent the

Party in any forum. [Rules 20, 43]

(iv) It is only the General Secretary that has the authority to

relax or make exceptions to any of the rules and regulations

of the Party.

(v) Decisions of the General Secretary are final, e.g. decisions

of the General Secretary on the disciplinary proceedings

shall be final, those who approach the Courts challenging

such decision, shall forfeit their membership by virtue of

the provisions of Rule 5.

Amendment of the Constitution to abolish the post of the General

Secretary would render the party into a completely new being.

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ZZ. BECAUSE the Constitution of the AIADMK mandates that the

General Secretary shall be elected by the primary members of the

AIADMK party. [Rule 20(ii)] It further mandates that the said

Rule that the General Secretary should be elected only by all

primary members of the party cannot be changed or amended

since it forms the basic structure of the Party. [Rule 43] Any

attempt at dilution of the said position, which is expressly stated

to be the basic structure of the party amounts to abandonment of

the AIADMK.

AAA. BECAUSE the resolutions purportedly passed in the alleged

meeting of 12.09.2017 at the behest of Respondents No. 2 to 5

completely changed the nature and structure of the AIADMK. In

particular, Resolutions No. 10 and 11, whereby not only was the

post of General Secretary established to be replaced by the

Coordinator and the Joint Coordinator; such office bearers who

were purported to be vested with all the powers enjoyed by the

General Secretary were stipulated to be appointed by the General

Council and not the primary members of the AIADMK. Thus, the

basic structure of the Constitution of the AIADMK was destroyed

in letter, spirit and substance.

BBB. BECAUSE the ECI and the Hon’ble High Court have failed to

note and appreciate other precedents which hold that majority is

not the sole test for adjudication of a dispute under paragraph 15

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of the Symbols Order. For instance, see Arjun Singh’s case [

Dispute no 1 of 1996, decided on 11.03.1996, para 14-22 of Mr.

T.N. Seshan’s decision]; All Party Hill Leaders’ Conference v.

Capt. W.A. Sangma, (1977) 4 SCC 161; Ramashankar Kaushik

v. Election Commission of India, (1974) 1 SCC 271; Indira

Gandhi Vs. K. Brahmananda Reddy Civil Appeal 4 of 1978.

CCC. BECAUSE a majority dehors the constitution can never claim

itself to be the Party. Moreover, a bare reading of para 14 of Sadiq

Ali Judgment demonstrates that apart from Test of Majority, there

are two other Tests, namely, Test of Constitution and Test of

Aims and Objects to determine as to which group would be

entitled to claim as the party under para 15 of the Symbols Order.

A party is always known by its ideology and the Constitution,

which binds its leaders and supporters equally. If a group of

persons, though they may have numerical majority but seeks to

follow a different Constitution or alter the basic structure of the

Constitution of the Party or follow new aims and objects, they

can’t be treated as the original party itself. They may be entitled

to be called a new party but not the original party.

DDD. BECAUSE the notice issued by the ECI on 21.09.2017 calling

upon parties to file fresh affidavits and submissions, yet confining

the scope of consideration and application of the majority test to

MLAs, MPs, Legislative and Organizational Wing of the Party,

effectively called upon the parties to demonstrate majority dehors

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the Constitution of the AIADMK. In the context of the

Constitution of the AIADMK, the test of majority could not have

been restricted in its application to the organizational and

legislative wings. The supreme authority in the AIADMK vests

with the primary members who are entitled to elect the General

Secretary and the test of majority ought to have been applied at

the level of the primary members. As for the legislature wing of

the party, it is pertinent that the legislators do not play an

important role, insofar as party affairs are concerned. The

Parliamentary Board, which selects candidates for election

consists of the General Secretary and members nominated by the

General Secretary. Therefore, the General Secretary is again

quintessential even for the purposes of constituting the legislative

wing of the party.

EEE. BECAUSE the ECI further erred in applying the test of majority

after a lapse of nearly 6 months from the time that the Petition

was filed. The ECI and the Hon’ble High Court further failed to

appreciate that the alleged strength of support in favour of the

Respondents No. 2 to 5 in September, 2017 could only have been

attributed to the new party that they represented after having

purported to amend the Constitution of the AIADMK, which

could not be considered for the purpose of ascertaining if the said

group represented the AIADMK.

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FFF. BECAUSE the Hon’ble High Court failed to appreciate that the

time frame for testing the majority is not merely an issue of

procedure, but is of substantive significance, inasmuch as

prolonging the time for demonstrating support encouraged horse-

trading and opportunities of coercion. The group led by the

Respondents No. 2 to 4 and Respondent No. 5 effectively

engineered a false majority taking advantage of the lapse of time

and fresh opportunity granted by the ECI.

GGG. BECAUSE even if the ECI genuinely believed that there were

two groups within the AIADMK, the ECI ought to have explored

remedies within the framework of the Constitution of the

AIADMK.

HHH. BECAUSE the Respondents No. 2 to 4 had themselves prayed for

a direction to conduct elections for the post of General Secretary.

Even if there were a serious dispute between the two groups, such

an election would have demonstrated which was the real party

and would have been consistent with the basic structure of the

AIADMK.

III. BECAUSE the ECI deviated from its own past precedents

followed by it while adjudicating disputes under paragraph 15 of

the Symbols Order, by failing to pass a suitable order and issue

directions to parties to comply with their respective rules and

regulations. To cite a few:

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(i) In Re: Himachal Vikas Congress dated 25.09.2000, where

there was a dispute between two factions of the party, the

ECI directed completion of organisational elections and

submit a list of office bearers to the ECI.

(ii) In the case of Naga People’s Front, the ECI categorically

held that the groups were necessarily required to exhaust

the mechanism provided within the party constitution and

settle disputes internally and that the first recourse would

be the party constitution.

JJJ. BECAUSE the Hon’ble High Court failed to appreciate that

despite serious discrepancies and fabrication having been brought

to the notice of the ECI, the ECI acted contrary to all principles

of natural justice and laws of procedure, by refusing to inquire

into the allegations, and refusing to afford any opportunity of

cross examination to the Petitioner. The ECI has treated

fabricated and untested material as genuine, these have resulted

in hearing being unfair and consequently contrary to the

principles of natural justice and, therefore, the proceedings and

the Order are void.

KKK. BECAUSE the Respondent Nos 2 to 5 have erroneously been

held to have majority support among the organizational and

legislative wing of the party (paras 56 to 61 of Impugned order)

though it was pointed out during the course of proceeding through

production of material, that the affidavits of support produced on

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29.9.2017 by the Respondent No.2 to 5 are marred by fabrication

fraud and tainted material and therefore, the affidavits filed by the

Respondents on 29.09.2017 should be rejected. The Hon’ble

High Court failed to appreciate that (1) a large number of

affidavits, fabricated led to suspicion regarding the remaining

affidavits. Even a sample scrutiny done by the Respondent no 1

revealed that 126 affidavits out of 1877 filed by respondent no 2

to 5 were on face of it not genuine; (2) only a sample scrutiny

could be done by the Petitioner by looking at such affidavits of

support and verifying from the concerned persons (given the short

period of time as affidavits were filed on 29.09.2017 and hearing

commenced from 06.10.2017) and therefore, it cannot be

assumed that rest of the affidavits are genuine; (3) the genuine

affidavits of these persons, supporting the petitioner was filed in

March 2017 and had not been retracted by the said persons

directly casting doubt on the veracity of such affidavits.

LLL. BECAUSE the ECI ought not to have proceeded to rely upon the

affidavits filed by the Respondents No. 2 to 5, when the Petitioner

had pointed out that:

(i) a substantial number of affidavits to be forged and

fraudulent.

(ii) ante-dating of some affidavits wherein stamp papers

are purchased on 26.09.2017 while on the said

papers by ante-dating affidavits are shown to be

sworn on 25.09.2017.
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(iii) producing many of the affiants to state that they have

been forced, unduly influenced and on whom fraud

was played for obtaining signatures.

(iv) 78 affidavits where stamp papers were purchased in

March/April 2017 and therefore, their validity is

susceptible.

(v) 44 affidavits were found to be not bearing the names

of the deponents, when it is an established rule in

Tamilnadu that when a stamp paper is purchased,

name of the executants is mentioned on the face of

the stamp paper.

MMM. BECAUSE there is no clear basis to conclude that the respondents

no. 2 to 5 enjoy majority in the party. This is demonstrated from

the fact that in March 2017, the Respondent No.6 and the

Petitioner demonstrated overwhelming majority in the party.

Additional 1218 fresh affidavits of support of new members were

also filed in favour of respondent no.6 in September 2017.

However, without duly appreciating the claim of the respondent

no.6 and the petitioner and without inquiring into the retractions,

fabrication, fresh affidavits obtained by coercion and undue

influence, the ECI has erroneously concluded that the majority in

support of respondent no.2 to 5 is undisputed.

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NNN. BECAUSE despite pointing to a large number of affidavits that

were fabricated, the ECI committed a serious and material error

in merely excluding such affidavits without examining whether

all affidavits were so tainted. Further, the ECI acted contrary to

all canons of justice and fair play by refusing permission to the

Petitioner to cross-examine the deponents, especially those who

had resiled from their stand.

OOO. BECAUSE as a quasi-judicial authority, the ECI is bound to

follow principles of natural justice. Although rules of procedure

may not be strictly applicable to a quasi judicial tribunal, cross-

examination is an essential facet of the principles of natural

justice and was necessary in this case to ensure conducting the

proceedings in a fair manner.[ Ref: 2002 (3) SCC 25, 1998 (3)

SCC 366, 2013 (4) SCC 465, (1985) 3 SCC 398 Indian Congress

(Socialist) Dispute case no 4 of 1995 decided on 19.03.1996,

Arjun Singh’s case (Dispute no 1 of 1996, decided on 11.03.1996

etc].

PPP. BECAUSE the ECI showed undue haste in concluding the

proceedings and omitting to consider serious and valid objections

raised by the Petitioner, thereby sacrificing fair play and justice

for expedition. This is even more stark considering that no

hearing was fixed between 20.04.2017 and 6.10.2017; thereafter,

the ECI itself sought to expand the scope of the proceedings by

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granting fresh opportunity to file affidavits and then scuttled the

Petitioner’s genuine objections to tainted material.

QQQ. BECAUSE that the Commission failed to appreciate that the

Petitioner herein fulfills all the test to be entitled to represent the

party and the symbol under Para 15 of the Symbol Order viz. (a)

they have majority in the Party, (b) even as per Party Constitution,

they are entitled to represent the Party, and (c) they fulfill all aims

and objects of the Party.

A. Test of Majority

Admittedly, the undisputed Affidavits of support are only those

Affidavits which were filed in March, 2017. The Respondents

No.2 to 5 only have the support of only 12 MLAs, 7 MPs and 68

General Council members and in contradistinction, the

Respondent No.6 and the Petitioner have the support of 122

MLAs out of 134, 37 MPs out of 50 and 1912 General Council

members out of 2141. Apart from this, about 7 lakh Affidavits of

primary members were also filed by the Petitioners. Whereas,

1.68 lakh Affidavits were filed by the Respondents, among which

many of the Affidavits were not even of the primary members.

This demonstrates that the Petitioners have undisputed majority

among the rank and file of the Party.

B. Test of Constitution
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Undisputedly, Respondent No.6 is the duly appointed General

Secretary of the AIADMK on 29.12.2016 and till date her

appointment has neither been challenged nor set aside by any

court of competent jurisdiction. As per the party Constitution,

General Secretary is representative of the entire wish of the party.

In this regard rules 20, 35 and 43 of the Bye-Laws be seen.

When Respondent No. 2 to 5 filed the petition on 16.3.2017, their

claim was that the split has occurred due to appointment of

General Secretary contrary to the bye laws of the Party

Constitution. It was alleged that Respondent No.6 had given the

Party Constitution a complete go-by and were unconstitutionally

occupying posts in the party hierarchy. They also relied on the

importance of the primary members of the Party who elects the

General Secretary. On the basis of the claim made by Respondent

no. 2 to 5 interim order dated 22.3.2017 was passed by

Commission indicating that the final decision will be taken after

deeper examination of the Party Constitution.

Thereafter on 12.9.2017 the Respondent No. 2 to 5 changed the

entire constitution of the Party which they had claimed to be

sacrosanct when they filed the Petition. By passing various

resolutions they abolished the post of General Secretary

altogether; created two new post of Jt. Cor-ordinator and co-

ordinator; took away right of the primary member to elect the

party head.
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Though all these facts were pointed out to the Commission, the

Commission has ignored the same while passing the order. The

Commission selectively took notice of the 12.9.2017 general

council meeting to conclude that there is a subsequent

development leading to change in support, however completely

overlooked the changes that were brought to the party constitution

and how the alleged majority was obtained.

C. Test of Aims and Object

It is submitted that under the Party Constitution of AIADMK, the

ground level party cadre, primary member was empowered to

elect a person who will lead the party, this aim now is completely

given up by the Respondent No. 2 to 5 by replacing the General

Secretary by 2 persons who are corrupt and indulge in anti-party

affairs and nepotism; instead of a democratic decision making by

the head, now it is collusive decision making concentrated in the

hands of two persons who are known for their anti-party

activities. It is stated Respondent No. 2 voted against Party whip

in February 2017 and thereafter for repeatedly 8 months criticized

the Party for at public platform. And then through coercion and

corrupt means, allured EPS, a nominee of Petitioner to give post

of Dy. Chief Ministership, himself engaging in anti-party

activities and giving up the aims and objects of the party.

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Despite these instances having been pointed out, the same was

neither looked into nor considered by the Commission.

RRR. BECAUSE the manner in which the proceedings were conducted

by the ECI reek of bias and malafide and vitiate the sanctity of

the final order passed by the ECI. The same is evident from the

fact that the Respondents No. 2 to 5 squarely benefited from

selective application of tests by the ECI for ascertaining the real

party. At the time when the Petition was filed before the ECI, the

Respondents No. 2 to 4 did not file any Affidavit of support with

their Petition. On the contrary, Respondent No.6 and the

Petitioner filed overwhelming Affidavits of support at all levels

in the Party in March 2017 (122 out of 134 MLAs, 37 out of 50

MPS and 1912 out of 2141 General Council Members). However,

at that stage, the ECI disregarded the test of majority altogether.

Thereafter, the ECI granted fresh opportunity to file affidavits,

despite the absence of any plea made by any of the parties to such

effect, enabling the Respondent No.2 to 5, to file fabricated

Affidavits and Affidavits of support obtained by force, coercion

and undue influence of persons. At that stage, the ECI abandoned

the test of the Constitution, which the ECI had itself considered

relevant and applied the test of majority. By delaying the

proceedings, permitting a change in the Constitution and

thereafter testing the majority, opportunity has been afforded to

engineer a majority in this case.

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SSS. BECAUSE the ECI has selectively relied upon subsequent

events. While fabricated and non-genuine affidavits filed in

September 2017 were taken into consideration, the ECI

completely ignored the subsequent resolutions passed on

12.9.2017, whereby the Respondents No. 2 to 5 have completely

changed the constitution and aims of the party and therefore,

disentitled themselves from claiming to be the AIADMK.

TTT. BECAUSE the denial of opportunity to the Petitioner to cross-

examine and test the genuineness of the affidavits filed by the

Respondents No. 2 to 5 despite glaring evidence of fabrication

makes the bias in the approach of the ECI writ large.

UUU. BECAUSE the final order of the ECI was first made known to the

media and Respondents No.2 to 5, as is evident from the various

tweets and media reports. On the contrary, when Counsel for the

Petitioners wrote and emailed to the Commission, no response

was given. Their calls were not even answered and when the

counsel went in person to the Commission, he was told the Order

was still being corrected.

VVV. BECAUSE the haste with which the election of the R.K. Nagar

Constituency was announced on the very next morning, further

shows the bias as the final order was handed over and election

was announced thereby preventing and precluding the Petitioner

from approaching the Court immediately. It appears to have been

done with a motive to allow the Respondents No. 2 to 5 to field

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their candidate on the said Symbol without giving any

opportunity to the Petitioners to seek relief.

WWW. BECAUSE the bias of the ECI is evident from the fact that despite

the interim arrangement having continued from 22.3.2017 and

despite knowing that election would be announced immediately

after the pronouncement of its Order, the ECI did not make any

arrangement to grant an interim symbol.

XXX. Because the bias and unfair action of the respondent no 1 ECI is

further evident when it denied a common symbol to the group led

by the Petitioner during the pendency of the present proceedings

before the Hon’ble High Court and thereby reducing the level

playing field and free and fair election. The same was corrected

by this Hon’ble Court speaking through Hon’ble Mr Justice A.

M. Khanwilkar, vide order dated 07.02.2019 held that for creating

a level playing field and for free and fair elections, the group led

by the Petitioner is entitled to a common symbol.

YYY. BECAUSE it was brought to the notice of the ECI that the serving

Ministers of the Tamil Nadu Government openly claimed unduly

influence the ECI and therefore, an appropriate action should be

taken against such Ministers. However, despite noticing this in

the impugned Order, the ECI failed to pass any ruling on the

same. This inaction shows the partisan behavior because the said

Ministers belong to the Group led by Respondents No.2 to 4.

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ZZZ. BECAUSE the bias and unfairness on the part of the ECI is

further apparent when new submissions were raised in the

Rejoinder and when fresh arguments were filed by way of Written

Submissions, a request of three days time to file a rebuttal made

on behalf of the Petitioner was again left unanswered.

AAAA. BECAUSE the Respondent No. 5 was freely enabled to change

his stand as per convenience. In the month of June, 2017,

Respondent No.5 filed an Application for Impleadment claiming

that he is the Chief Minister of the State and, therefore, he should

be heard in the matter. In the said Application of Impleadment,

the Respondent No.5 did not support the case of Respondent No.2

to 4 of their being Leader of the Party.

BBBB. BECAUSE the order of the Madurai Bench of the Madras High

Court as well this Hon’ble Court while directing the ECI to decide

expeditiously emphasized upon the requirement to follow due

procedure and the responsibilities of a constitutional functionary.

CCCC. BECAUSE despite repeated oral as well as written requests for

sample scrutiny of the affidavits the ECI did not take a decision

on the same while the matter was pending. The ECI did not deal

with the various applications filed by the Petitioner seeking that

the entire material filed by the Respondents No. 2 to 5 be

excluded being tainted by forgery and fabrication of affidavits,

and that criminal prosecution be initiated, although that should

have preceded any further consideration of the dispute. However,

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Respondent No.1 Commission continued with the hearing and did

not decide these issues.

DDDD. BECAUSE despite 10 persons, whose fabricated affidavits,

affidavits obtained under fraud, coercion and undue influence,

presented themselves before the ECI, they were not even called

for examination by the ECI and the Hon’ble High Court held it to

be insufficient for taking an action in accordance with law.

EEEE. BECAUSE the Hon’ble High Court failed to appreciate the law

laid down by the Hon’ble Supreme Court erred in Ram Sukh V.

Dinesh Aggarwal (2009) 10 SCC 541 wherein it is stated that

“material facts” and “the particulars” have to be pleaded in the

first instance. [Also see VirenderNathGautam V. Satpal Singh

(2007) 3 SCC 617 and Anil VasudevSalgaonkar V. Naresh

Kushali Shigaonkar (2009) 9 SCC 310.

FFFF. BECAUSE the ECI failed to consider that the prayers raised in

the Dispute No.2 of 2017 filed by the Respondent Nos.2 to 4 are

common with the prayers raised by the petitioner in C.S.No.858

of 2017 before the Hon’ble High Court of Madras and the Civil

suit ought to have been given precedence.

GGGG. BECAUSE the ECI erred in holding that Section 195 of Cr.P.C.

against the Respondent Nos.2 to 5 for commission of offences

under the provisions of Sections 177, 181, 182, 191, 192, 193 and
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196 read with Section 120B of Indian Penal Code is not

applicable in the instant case.

HHHH. BECAUSE without prejudice to the Petitioner’s case that it

represents the real AIADMK, the Hon’ble High Court has erred

in failing to direct the ECI to grant a common symbol to the group

headed by the Petitioner and relax the procedural formalities of

registration and recognition for the purposes of elections that

could take place at any time. The group represented by the

Petitioner having polled more than 6% of the votes and having

more than two members in the Legislative Assembly squarely

meets the requirements of recognition as a State Party under the

Symbols Order.

IIII. BECAUSE the ECI has itself in the past granted such recognition

to splinter groups which did not succeed in their stake to be the

main party.

JJJJ. BECAUSE the aforesaid principle was applied by this Hon’ble

Court in this very case, when on 07.02.2019, this Hon’ble Court

upheld the order of the Hon’ble High Court permitting grant of a

common symbol pending adjudication of the Writ Petitions,

which would become operative if the Petitions were not disposed

of within 4 weeks or if there were to be a notification issued by

the ECI.
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KKKK. BECAUSE by failing to grant any relief as to a symbol in the

interregnum, the Petitioner’s right to carry out political activities

has been seriously jeopardized. Such a narrow and legalistic

approach have far-reaching consequences as it would scuttle free

and fair dissent within parties and party democracy.

LLLL. BECAUSE the Hon’ble High Court and the ECI failed to

appreciate the law laid down by the Hon’ble Supreme Court in

the case S.C. Chengalvaraya Naidu Vs. Jagannath 1994 SCC (1)

1 where it is held that fraud vitiates everything. Also see 2007(8)

SCC 449; 2010 2 SCC 114; 2010 4 SCC 728, 2013 (9) SCC 92;

2012 (2) SCC 144.

MMMM. Because the Hon’ble High Court and the ECI failed to

appreciate the law laid down by the Hon’ble Supreme Court in

2002(3) SCC 25, 1998 (3) SCC 366, 2013 (4) SCC 465 wherein

the Court has stated that the evidence unless tested cannot be

relied upon by Court to arrive at a decision.

NNNN. BECAUSE the Hon’ble High Court and the ECI failed to

appreciate the law laid down by the Hon’ble Supreme Court in

2008 (3) SCC 279, 1971 (2) SCC 617), AIR 1967 SC 29 where it

is held that when facts are to be proved and the other party i.e.

Petitioner herein should have been given an opportunity to cross-

examine even if not provided under the statute, the same being

part of natural justice.

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OOOO. BECAUSE the ECI and the Hon’ble High Court failed to

appreciate the law laid down by the Hon’ble Supreme Court in

Union of India Vs. Tulsiram Patel (1985) 3 SCC 398 wherein it

has been inter alia held that a person against whom an order to his

prejudice may be passed should be informed of the allegations

and charges against him, be given an opportunity of submitting

his explanation thereto, have the right to know the evidence, both

oral or documentary, by which the matter is proposed to be

decided against him, and to inspect the documents which are

relied upon for the purpose of being used against him, to have the

witnesses who are to give evidence against him examined in his

presence and have the right to cross-examine them, and to lead

his own evidence, both oral and documentary, in his defence.

Also see DharampalSatyapal Ltd. Vs. Deputy Commissioner of

Central Excise (2015) 8 SCC 519.

PPPP. BECAUSE Hon’ble High Court and the ECI failed to appreciate

the law laid down by the Hon’ble Supreme Court the proceedings

conducted in violation of natural justice are void ab-initio [Ref.:

Swadeshi Cotton Mills vs Union Of India,1981 (1) SCC 664;

RadhyShyam v. State of U.P., 2011 (5) SCC 553; Kesar

Enterprises Ltd. v. State of U.P., 2011 (13) SCC 733].

QQQQ. BECAUSE Hon’ble High Court and the ECI failed to appreciate

the law laid down by the Hon’ble Supreme Court in Bharat

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RasiklalAshra Vs. GautamRasiklalAshra, (2012) 2 SC C 144

where it was held that the allegations of fraud, forgery and

fabrication are likely to involve recording of evidence or involve

some delay in disposal, are not grounds for refusing the same

RRRR. BECAUSE Hon’ble High Court and the ECI failed to appreciate

the law laid down by the Hon’ble Supreme Court in Telstar

Travels (P) Ltd. Vs. Enforcement Directorate, (2013) 9 SCC 549

where it has been laid down not that only should the opportunity

of cross-examination be made available, but it should be one of

effective cross-examination, so as to meet the requirement of the

principles of natural justice.

SSSS. BECAUSE that the Hon’ble High Court and the ECI failed to

appreciate that under para 15 of the Symbol Order it is provided

that the Commission may, after taking into account all the

available facts and circumstances of the case, thereby meaning

that Respondent no1 has wide amplitude and the power to cross

–examine witnesses vis-à-vis forgery and fabrication.

TTTT. BECAUSE that the Respondent No. 1 commission failed to

appreciate the law laid down by the Hon’ble Supreme Court in

Ram Phal Kundu v. Kamal Sharma, (2004) 2 SCC 759 where it

was held that the document where signature is obtained by threat

cannot be considered.
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6. GROUND FOR INTERIM RELIEF: -

A. That the petitioners crave leave of this Hon’ble Court to rely

upon and refer to the facts, circumstances and grounds

mentioned in the main ground of Special Leave Petition, which

are not reproduced here for the sake of brevity. The Petitioners

submit that they have a strong prima facie case and are likely to

succeed in the Appeal.

B. The Respondents no 2 to 5 having fundamentally altered the

party constitution and based on their own admission, they are

disentitled to the symbol of ‘Two Leaves’ as they are no more

party AIADMK. Hence, continuance of said symbol in their

favour is prejudicial to the interest of the Party and supporting

primary members who are aprox 1.5 crore in numbers and

therefore, it would in the interest of justice to freeze the symbol

of ‘Two Leaves’ during the pendency of this petition.

C. That balance of convenience lies in favour of the Petitioners and

against the Respondents. Unless the Impugned Orders are

stayed and interim orders are not passed in terms of prayers it

would lead to serious prejudice and will also render the elections

in Tamilnadu & Puducherry as without being fair and free.

7. MAIN PRAYER
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In view of the aforesaid facts and circumstances of the case and

in the interest of justice, the petitioner herein most respectfully pray that

this Hon’ble Court may graciously be pleased to:

(a) Grant Special Leave to appeal against the common

Judgment dated 28.02.2019 passed by the Hon’ble High

Court of Delhi at New Delhi in W.P. (C) No. 10728 of

2017;

(b) Pass such other further order or orders as may be deemed

fit and proper in the facts and under the circumstances of

the present case.

8. PRAYER FOR INTERIM RELIEF

It is, therefore, most respectfully prayed that this Hon’ble Court

may kindly be pleased to:

(a) Pass an ex-parte order staying the operation passed common

judgment dated 28.02.2019 in WP (C) No. 10728 of 2017 passed

by the Hon’ble High Court of Delhi;

(b) Pass an ex-parte order staying the operation of the order dated

23.11.2017 passed by the Respondent no 1 allotting the symbol

of ‘Two Leaves” to the group led by Respondents no 2 to 5;

(c) Pass an ex-parte order freezing the symbol of ‘Two Leaves’

during pendency of the present Petition;

(d) Pass an ex-parte ad interim order directing the Respondent no. 1

ECI to allot a common symbol of pressure cooker and name of

"AMMA MAKKAL MUNNETTRA KAZAGAM" to the

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candidates set up by the group led by the petitioner in upcoming

elections;

(e) Pass any other order(s) or directions as this Hon’ble Court may

deem fit and proper under the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE HUMBLE

PETITIONERS SHALL EVER PRAY AS IS DUTY BOUND.

DRAWN & FILED BY:

(VIVEK SINGH)

ADVOCATE FOR THE PETITIONER

New Delhi

Drawn on: 28.02.2019

Filed on: 01.03.2019

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION NO. (C) NO. of 2019

IN THE MATTER OF:

T. T. V. DHINAKARAN. ….Petitioner

Versus

THE ELECTION COMMISSION

OF INDIA & ORS. ……Respondents

CERTIFICATE

Certified that the Special Leave Petition is confined only to the

pleadings before the Court whose order is challenged and the documents

relied upon in those proceedings. No additional facts, documents or

grounds have been taken or relied upon in the Special Leave Petition. It

is further certified that the copies of the documents/annexures attached

to the Special Leave Petition are necessary to answer the questions of

law raised in the Petition or to make out grounds urged in the Special

Leave Petition for the consideration of this Hon’ble Court. This

certificate is given on the basis of the instructions given by the Petitioner

authorized by the Petitioner whose affidavit is filed in support of the

SLP.

FILED BY

(VIVEK SINGH)
ADVOCATE FOR THE PETITIONER
New Delhi
Dated: 01.03.2019