New Delhi, May 13 The Supreme Court on Wednesday stayed the Madras High Court order that had restrained TVK MLA R Sreenivasa Sethupathi from participating in the floor test in the Tamil Nadu assembly, saying such a directive under writ jurisdiction was "atrocious".
The Tamilaga Vettri Kazhagam (TVK) government in Tamil Nadu crossed the major hurdle on Wednesday, winning a confidence-boosting trust vote by a 144:22 margin amid a walkout by the principal opposition party DMK and a divided AIADMK whose one faction supported the C Joseph Vijay-led government.
"This is atrocious to say the least. The high court says the remedy is election petition but still entertains the Article 226 petition," a bench of justices Vikram Nath, Sandeep Mehta and Vijay Bishnoi observed while hearing the plea.
Article 226 of the Constitution empowers high courts to issue writs of various nature to do complete justice. However, any order with regard to cancellation of an elected candidate can only be passed on an election petition filed by defeated candidate or a related party.
While issuing notice on Sethupathi's plea challenging the high court's May 12 interim order, the apex court also stayed the proceedings pending before the high court in the matter.
"In the meantime, the effect and operation of the impugned order shall remain stayed and further proceedings before the high court in pending writ petition shall also remain stayed," the top court said.
Sethupathi had won the No.185 Tiruppattur assembly constituency in Sivagangai district by a margin of a single vote against Dravida Munnetra Kazhagam (DMK) leader and former minister K R Periakaruppan.
The apex court granted two weeks time to Periakaruppan and other respondents to file their counter affidavits on Sethupathi's plea.
"Rejoinder affidavit be filed within two weeks thereto. List thereafter," the bench said.
The bench was hearing Sethupathi's plea challenging the high court's interim order which restrained him from voting or otherwise participating in any floor test, confidence motion, no-confidence motion, trust vote or any proceeding where the numerical strength of the House is tested, pending further orders.
During the hearing, senior advocate Abhishek Singhvi, appearing for Sethupathi, argued that the high court order was in blatant disregard of the orders passed earlier by the apex court.
Senior advocate Mukul Rohatgi, appearing for Periakaruppan, said the DMK leader lost the election by one vote.
"So you go to the high court under Article 226? How can you file a 226 petition," the bench asked Rohatgi, adding, "You want a reasoned order on stay?"
Rohatgi said one postal ballot meant for No.185 Tiruppattur constituency was wrongly sent to No.50 Tiruppattur assembly constituency in Tirupattur district.
He said the postal ballot was discarded instead of being forwarded to the correct returning officer for consideration.
"Had it come to the correct address, then it would have been a tie," Rohatgi said.
Singhvi said the petition was filed in the high court on Saturday and was listed for hearing on Sunday.
During the hearing, the bench was informed that the floor test proceedings in the Tamil Nadu assembly was underway.
Periakaruppan had approached the high court alleging irregularities in the counting process, including the alleged rejection of a postal ballot that was mistakenly sent to another constituency.
He had also pointed to alleged discrepancies in the electronic voting machine (EVM) count, claiming there was an 18-vote variation between the consolidated counting abstract and figures published on the Election Commission website.
While passing the interim order, the high court had observed that a strong prima facie case had been made out for a limited protective direction.
However, it had clarified that the order did not amount to setting aside Sethupathi's election, nor did it confer any right on Periakaruppan to be declared elected.
The high court had further directed authorities to secure and preserve all records related to the counting process in the No.185 Tiruppattur assembly constituency, including video footage concerning counting, scrutiny, rejection of postal ballots and reverification proceedings, in their original electronic form along with backup copies.
