V VETRISELVAN Vs. S M RAJU

JUDGEMENT

(1.) The Election Petition No.3 of 2000 has been filed by the respondent herein, challenging the election of the applicant in the Parliamentary election held on 11.9.1999 and declared on 6.10.1999. The present application has been filed to reject the Election Petition No.3 of 2000 as it does not furnish any cause of action and totally lacks material facts.

(2.) In the affidavit, filed in support of the application, it is stated as follows: (a) The respondent has filed the Election Petition on the ground that excess expenditure has been incurred by the candidate and his election agent; to attract Section 153(6) of the Representations of People Act, 1950, the applicant has to plead all the facts to show the authorisation or undertaking of reimbursement by the returned candidate or the election agent; the expenditure incurred either before the election or after the election cannot be taken into consideration. Election applicant has to plead the exact date of the expenditure; the essence of the the matter is that whose money is that has been spent and not that whose hand spent the money; Well wishers and enemies of rival candidates sometime incur expenditure without the consent of the candidate and even without his knowledge. (b)Further, the election applicant had not verified that which paragraph of the election petition are based on his knowledge, which paragraphs are based on his information and which paragraphs are based on his belief; the affidavit should be in accordance with Form-25 and in accordance with Rule 94(A). In the verification done in the election petition, certain paragraphs are verified as true to his knowledge and certain paragraphs are true to his information; however, in the affidavit filed in support of the election petition, the respondent mingles all the paragraphs under one heading and has verified that all those paragraphs are true to his knowledge and information. This is not in compliance of Rule 94-A of the Conduct of Election Rules. (c)The election petition filed on the grounds of corrupt practice is of quasi-criminal in nature; therefore, it should be proved like a criminal case. The object of swearing affidavit in the prescribed form is to ensure that the allegations of corrupt practice are not made lightly, but ensures the responsibility thereafter. The Supreme Court has also held that fishing and roving enquiry should be avoided. (d)The election petition lacks material facts. The averment that returned candidate and his election agent incurred expenses in connection with cut-outs is vague. It is stated that cut-outs were displayed throughout the constituency; neither the size of the cut-outs nor the places where they were displayed, the nature of painting, name of the artist are mentioned; when these material facts not being pleaded, the election applicant cannot substantiate the same in evidence. It is not stated whose cut-out were displayed, whether the cut-out of the leader of D.M.K. party or of the candidate himself or of the leader of the alliance party; it is not even pleaded how many cut-outs were installed. The break-up figures for the alleged expenses are not given. Under these circumstances, the returned candidate is not in a position to meet these allegations; hence, they lack material facts. (e) It is alleged that vehicles were used in various panchayat unions. It is alleged in the stereo-typed fashion without specifying the actual expenses incurred. There are no material facts pleaded as to in which routes, the vehicles were put in use. The election applicant has not stated the extent of time and number of days the vehicles were used or whether they were used for the whole day or only during a part of the day; merely pleading the number of the vehicle and the owners' addresses is not sufficient. It is pleaded that the election applicant himself has seen that 52 vehicles were utilised on all the days between 23.8.1999 and 9.9.1999. It is not pleaded as to whether the election applicant has seen the plying of all the 52 autos on all the days; he refers two persons who were alleged to have seen that vehicles were used; these persons could not have seen all the autos running in all the places, especially when one of them is a contesting candidate. (f)It is further stated that D.M.K. flags throughout the constituency were used and a sum of Rs.8,75,000/- was incurred. It is also alleged that the flags were purchased in Erode in bulk and the election applicant himself has seen the display of D.M.K. flags. The size of the flag, whether the flags were displayed through sticks or whether they were tied to the electrical poles or wooden poles is not pleaded. It is not even stated from which shop they were purchased, particularly when the election petition alleges that he has personal knowledge of the purchase. Further, dates of purchase also were not given. The number of flags purchased has not been given. A sweeping allegation that Rs.8,75,000/- was spent is not sufficient. (g)With reference to erection of banners, it is alleged that an amount of Rs.21 lakhs was incurred without giving any details of the banners erected; atleast like places where it has been erected and the name of the artist/painter who had prepared the banner and size of the banner should have been stated. (h)For writing on the wall, it is stated, that a sum of Rs.39 lakhs was incurred. It is only a generalised statement without any particulars. (i)It is stated that Rs.3,75,000/- was used for advertising in the newspapers both in English and Tamil. The advertisements made by the friends, sympathisers, associations and by the party cannot be taken into account. Election Petition does not specify the the actual amount spent, in this regard. Therefore, it lacks material facts. (j) It is alleged that a sum of Rs.64.59 lakhs was incurred for polling booth expenses at the rate of Rs.5,000/- for each booth. It is not pleaded on which date expenditure was made and the nature of expenditure and how he has arrived that a sum of Rs.5,000/- per booth. (k) With regard to expenditure incurred for erection of stages and dais, no particulars are given; not even the names of the contractors who erected the stages are pleaded. It has not been specifically pleaded regarding the wall-posters, cut-outs, hand-bills etc. Further, it is not pleaded the sources from which the money received by him to meet out the total expenditure of Rs.2,31,520/-. Therefore, the Election Petition has to be rejected for want of material aspects.

(3.) In the counter filed by the Election applicant/ the respondent herein, it is stated that this petition is abuse of process of law and not bonafide. The affidavit filed along with Election Petition is in accordance with Rule 94-A of the Conduct of Election Rules. It is only the substance that counts and not the form. The Election Petition contains material facts and full particulars. According to the Apex Court, any such defect is curable. The allegation that the respondent wanted to have a fishing and roving enquiry is not correct. The Election Petition does not lack material facts. The applicant herein is going into the merits of the case. It is open to him to put it in the cross-examination. The amounts spent by the second respondent in the Election Petition is within his knowledge and it is for him to disclose the details. The other contentions made in the application are argumentative. The averments made in the Election Petition have to be taken as correct for the purpose of deciding the question of maintainability. The counter has already been filed in the Election Petition and it is ripe for trial. Therefore, filing of the application at this point of time is not bonafide. The Supreme Court also held that any mistake in the verification cannot be a ground for dismissing the Election Petition. Further issues have already been framed. Therefore, it is proved that there are triable issues. Hence, this application is to be dismissed with costs.