'No Misrepresentation Or Suppression Of Material Facts': Madras High Court Rejects Election Petition Against Former CM Panneerselvam

Madras High Court has rejected an election petition filed for declaring the election of O. Panneerselvam from Bodinayakanur Legislative Assembly constituency as null and void. An application was filed by Panneerselvam before Madras High Court against the election petition filed by P. Milany, a voter in the constituency.

The election petition had alleged that the AIADMK Candidate and the former Chief Minister of Tamil Nadu had suppressed material facts and failed to disclose the assets and liabilities of his wife, P. Vijayalakshmi, at the time of filing the nomination papers. On these grounds, the petitioner submitted that there has been non-compliance of the provisions of Sections 33 and 33A of the Representation of People Act, 1951 (hereinafter the 'Act') r/w Rule 4A of the Conduct of Election Rules, 1961. It was also added that the election of the former CM must be cancelled since the affidavit furnished in Form 26 did not contain the full particulars that must have been there.

Justice V. Bharathidasan noted that the principles laid down in Hari Shanker Jain v. Sonia Gandhi (2001) and Ram Sukh Vs. Dinesh Aggarwal (2009) would apply in the case at hand and noted in the order that the election petition does not disclose a cause of action regarding suppression of material particulars.

Mentioning that the petitioner failed to prove the misrepresentation alleged against Panneerselvam, the court concluded as below:

"...the election petitioner failed to substantiate that, the first respondent had violated the provisions of Sections 33A, and 100(1)(d)(i) and (iv) of the Act. This Court is also fully satisfied that the first respondent had substantially complied with all the requirements as required in the Act. That apart, as rightly contended by the learned senior counsel appearing for the first respondent, absolutely there is no pleading that those alleged nondisclosure has materially affected the election. The election petitioner failed to make out a case that, the nomination of the first respondent has been improperly accepted..."

One of the allegations against Panneerselvam was that the affidavit furnished was devoid of the information that his wife stood as a guarantor for M/s.Vijayanth Developers Pvt. Ltd. for the amount of Rs 27.5 crores whereas the total guarantee given in respect of properties is only marked as 12 crores in the affidavit. Vijayanth Developers Limited is owned by one of the sons of Panneerselvam, VP Jayapradeep, who borrowed the said loan. The petitioner alleged that the liability to the extent of REs 15.5 crores have been suppressed deliberately in the affidavit.

The court perused the documents including the memorandum of deposit of title deeds submitted by the respondent and disagreed with the above contention. The court concluded that the credit facilities availed by the Company by mortgaging the agricultural lands originally stood in the name of the sons themselves and the ownership was later transferred tot the mother via a gift deed. The court also marked its reasons as follows:

"I find that originally all the properties were mortgaged by the first respondent's sons and thereafter, the properties were transferred in favour of the first respondent-wife with the consent of the bank and after the properties have been transferred in her name, she has extended the bank guarantee only for a sum of Rs.12 crores, which has been disclosed in the affidavit and therefore there is no suppression or misrepresentation by the first respondent."

Senior Counsel ARL Sundaresan appeared for the current Deputy Chief of Opposition. The judge accepted the submissions made by the senior counsel against the allegation that there has been undervaluation of the agricultural properties owned by the respondent's wife to the tune of crores. The counsel acknowledged that the properties were given as a guarantee to the bank and its value has been shown as 13.5 crores and 14 crores respectively in the bank. However, the counsel refuted the contention of the petitioner that it has been undervalued in the affidavit by saying that the guarantee in the bank included the properties that stood in the name of other directors of the company as well.

"Apart from the property owned by his wife, other properties were also given as guarantee, and the total value of all the properties were mentioned therein, and there is no suppression or undervaluation of the properties", the court, therefore, noted.

A pertinent allegation against Panneerselvam was that he showed his occupation as an agriculturalist in the affidavit though he hasn't shown any agricultural income. The counsel for Panneerselvam contended that there has been no misrepresentation since the agricultural lands are owned by his wife and the income derived from therein has been shown separately by is wife.

"Perusal of the records, it could be seen that, the income shown by the first respondent is income earned by him as Deputy Chief Minister and he has separately shown the agricultural income of his wife. Admittedly his family owns agricultural properties, merely because the first respondent did not have any separate agricultural income, it cannot be construed that he is not an agriculturist and at any rate it could not be considered as misrepresentation. It is also not the case of the election petitioner that the first respondent is having separate occupation and he is not an agriculturist", the court inferred.

On the alleged non-compliance of the respindent with Section 33-A of the Act, the court noted that the petitioner has not averred that  that the first respondent has been an accused in any criminal case or convicted for any offence, and failed to disclose the same. Therefore, Panneerselvam has not violated Section 33-A of the Act, the court noted.

Another allegation against Panneerselvam was that he had given the wrong survey number for his residential building which was proven wrong by the production of a certified copy of the sale deed.

There were also allegations about a specific land purchased by the wife of the respondent in Periyakulam. It was submitted that the information about residential building erected on the land was suppressed by Panneerselvam. However, the court reached a different conclusion after perusing the records. The court agreed with the contention of ARL Sundaresan that the market value was nearly 3 lakhs when the land was purchased and the affidavit correctly shows the current value as 30 lakhs which includes the variation in the value due to additional construction.

Another allegation pertained to land shown as 'vacant land' in the affidavit. However, according to the petitioner, the said land was assessed by the Municipality for property tax and submitted that this would mean that there is a residential building.

The court noted in the order as below:

"From the schedule, it could be seen that there is an old dilapidated building before her purchase, which was also assessed for property tax, and she continues to pay the tax. Merely because the first respondent's wife is paying property tax, it cannot be presumed that there is a building therein, and it cannot be held that the first respondent has suppressed the same", the court concluded.

About another allegation on suppression of the existence of five residential buildings in Thenkarai village, the court noted that they are agricultural properties with mere sheds for the sake of labourers and the storage of farm equipments. The court remarked that there are no residential buildings as such according to the sale deeds and no property tax has been levied on any of the said sheds.

Therefore, the court allowed Panneerselvam's application filed under Order VII Rule 11 of CPC and rejected the election petition.

Case Title: O. Panneerselvam v. P. Milany & Ors.

Case No: O.A.No.764 of 2021

Citation: 2022 LiveLaw (Mad) 104

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