The Supreme Court on Wednesday stayed the Madras High Court order by which it had restrained Tamilaga Vettri Kazhagam (TVK) MLA R Seenivasa Sethupathi from voting in any floor test or trust vote in the Tamil Nadu Legislative Assembly [Seenivasa Sethupathi Vs Periakaruppan].
A Bench of Justices Vikram Nath, Sandeep Mehta and Vijay Bishnoi termed the High Court order as "atrocious" since the same came to be passed in an Article 226 petition filed by Sethupathi's opposing candidate, and not an election petition as mandated under law.
"This is atrocious to say the least," the Supreme Court remarked.
"We have heard the senior counsels for the parties. Counsel for the respondent is granted two weeks. In the meantime, the order shall remain stayed. Further proceedings before the High Court also stayed," the apex court ordered.
The Court was hearing an appeal filed by Sethupathi against the High Court order.
Sethupathi won the recent assembly election from No.185 Tiruppattur constituency in Sivagangai district by a margin of one vote against KR Periakaruppan.
Periakaruppan then moved the Madras High Court by way of a writ petition under Article 226 of the Constitution, alleging discrepancies in the counting process. He also claimed that a postal ballot was not counted after it was sent to the wrong constituency.
The postal ballot meant for No.185 Tiruppattur Assembly Constituency was wrongly sent to No.50 Tiruppattur Assembly Constituency in Tirupattur district, he said.
He argued that the ballot ought to have been sent to the correct Returning Officer instead of being rejected.
Periakaruppan also alleged discrepancies in the EVM vote figures. He claimed that there was an 18-vote difference between the consolidated counting abstract and figures available on the Election Commission website.
The High Court on Tuesday passed an interim order restraining Sethupathi from participating in legislative assembly proceedings till further orders. It restrained Sethupathi from voting or otherwise taking part in any floor test, including a confidence motion, no-confidence motion, trust vote or any voting proceeding in the Tamil Nadu Assembly where the numerical strength of the House is tested.
The order meant that the TVK-led alliance would have a wafer thin majority of one MLA in the 234-strong Tamil Nadu legislative assembly. The TVK alliance currently has 120 MLAs in the house. With the High Court's order, only 119 can participate in the house proceedings.
However, the High Court clarified that the interim order would not amount to setting aside Sethupathi’s election. It also said that the order would not confer any right on Periakaruppan to be declared elected.
This led to the appeal before the top court by Sethupathi.
When the matter was taken up, the Court at the outset asked how Periakaruppan could have filed an Article 226 petition challenging the elections results instead of an election petition.
"How do you file a 226 petition? Is ECI supporting the petitioner or respondent?" the Court asked.
Senior Advocate Abhishek Manu Singhvi, appearing for Sethupathi, said that the ECI supported Sethupathi.
"High Court says (only) election petition is maintainable and yet passes a stay order," the Supreme Court observed with disapproval.
Senior Advocate Mukul Rohatgi, appearing for Periakaruppan, sought to highlight the facts of the case.
"Please allow me to state the facts. This is constituency 185, there is constituency of the same name. It transpired that one postal ballot reached constituency 50. Had it come to the correct postal address, there would have been a tie. In the counter, ECI says there is no provision! Section 100 provides counting with regard to votes before the officer," Rohatgi said.
The Court after a brief hearing proceeded to stay the High Court order.
Singhvi was briefed by advocates Dixita Gohil, Pranjal Agarwal, Rupali Samuel and Yash S Vijay.
[Read Live Coverage]