T.T.V. DHINAKARAN Vs. P. SELVENDRAN,

JUDGEMENT

(1.) An Election Petition is filed by the first respondent herein in Election Petition No.1 of 2000, challenging the election of the petitioner herein and seeking a declaration that the election of the petitioner herein from No.25 Periyakulam Parliamentary Constituency is null and void and to set aside the same on the grounds that (i) under S. 100(1)(a) of the Representation of People Act, 1951 the returned candidate was not qualified to be chosen to fill the seat; (ii) under S. 100(d)(1)(a) of the Representation of People Act, 1951, the result of the election of the petitioner herein has been materially affected by the improper acceptance of his nomination; (iii) under S. 100(1)(d)(iv) of the Representation of People Act, 1951, there is non compliance of provisions of Constitution or any rules or orders made under the Act; and (iv) the petitioner herein should have been disqualified under S. 8(1)(e) read with S. 100(1)(a) of the Representation of People Act, 1 951, and to declare that the first respondent herein has been duly elected from No.25 Periyakulam Parliamentary Constituency.

(2.) During the pendency of the main election petition, the first respondent therein and the petitioner herein has filed the instant application in O.A.No.18 of 2002 seeking rejection of the main election petition, as it does not furnish any cause of action and is totally lacking material facts within the meaning of S. 83(1)(a) of the Representation of People's Act.

(3.) The averments in the affidavit filed in support of the application can briefly be stated as follows: It is averred in the main election petition in para 5 that the petitioner herein has acquired allegiance or adherence to foreign State viz. Republic of Singapore. The thrust of the said allegation is that by a process of acquisition, he has acquired allegiance or adherence to a foreign State. In support of this serious allegation, there is no material facts mentioned in the main elect ion petition. What is stated in the main petition is a copy of the memo of appeal preferred by the petitioner herein before the Appellate Board constituted under Foreign Exchange Regulation Act. This does not and cannot mean acquisition of allegiance or adherence. The allegations made in paragraph 9 of the main petition that the petitioner herein had applied for and granted by the Singapore authorities in January 1995, the status of Permanent Resident of Singapore; that this was subject to local laws of Singapore State; that the status of Permanent Resident is subject to the rights and liabilities, arising out of Singapore laws viz. Immigration Act and Companies Act; and that by such a permanent resident status in Singapore, the petitioner herein is clearly under an acknowledgment of allegiance or adherence to the Foreign State, thus incurring the disqualification for Membership of either of House of Parliament are totally lacking material facts. Firstly, it lacks in material facts viz. What are the rights and liabilities of a Permanent Resident Status holder in Singapore?. The first respondent herein seeks to equate the permanent Resident status as "Acquisition" of allegiance or adherence to a foreign State. The basic material facts required are what are the rights and liabilities following from or referable to a person having permanent resident rights in Singapore; and how those rights and liabilities that attach to a permanent resident of Singapore could be equated to or is allegiance or adherence to a foreign State. Without these material facts, it is impossible for the first respondent herein to meaningfully reply to the allegations in paragraph 9. Nor is it possible to conclude the basic premise that getting permanent resident status ipso facto means allegiance or adherence to a foreign State. Secondly, the allegations regarding the rights and liabilities arising out of the said local laws of Singapore lack totally material facts. What are the laws of Singapore, is not mentioned in the main petition. So also, how those laws are made applicable to a Permanent Resident and under what circumstances and conditions are not mentioned. It is also not mentioned how those laws or the provisions in those laws amount to acknowledgement of allegiance or adherence to a Foreign State so as to amount to disqualification within the meaning of Article 102 of the Constitution of India. It appears to be the requirement of law that if reliance is placed on any foreign law, it must specifically be pleaded and quoted as the foreign law itself amounts to a material fact. This Hon'ble Court cannot take judicial notice of any foreign law. Therefore, the main election petition lacks cause of action. The first premise that the disqualification by means of allegiance or adherence to a foreign State is by acquisition is an impossible concept, and one that is unknown to law, and the same cannot possibly exist. No process by which there could be an acquisition of allegiance or adherence to a foreign State is either mentioned or pleaded in the main petition. The second premise is acknowledgement of allegiance or adherence. The word "OR" used denoting the disjunctive itself renders the main petition vague and is a failure to furnish the exact fact and material fact. It appears to be that allegiance is one concept, and the adherence is entirely another. The ingredients of both are not the same. Hence, it cannot be averred that by acquisition, the petitioner herein has acknowledged allegiance or adherence to a foreign State. This vagueness flows from the lack of material fact. It is averred in paragraph 11 that this petitioner "in being a Director of Dipper Investments Ltd. Godfrey Resources and Benjan Tree is governed by UK Company Laws.... Being the Director of the above said Company he is under an acknowledgement of an allegiance or adherence to a foreign State under Art. 102(1)(d) of the Constitution". The vagueness and lack of particulars are also too clear in the said paragraph. How being a Director of a Company in UK would, in law, amount to acknowledgement of allegiance or adherence to a foreign State so as to amount to a disqualification. Firstly, what are the rights and liabilities of a Director by laws of UK governing such Directorship of the Company is not averred in the main petition. Secondly, the laws of UK would constitute a material fact, that requires to be pleaded. Thirdly, it is not stated how there had been any instance of adherence to any such law in the first place by the petitioner. These material facts are required to be pleaded. Likewise, the allegation in para 13 of the main petition that he had suffered an imposition of penalty by the proceedings of the Special Director, Enforcement Directorate as an adjudicating authority also lacks material facts. The disqualification under S.8(1)(e) of the Representation of People Act 1951 clearly mentions that a person must be convicted by court of competent jurisdiction i.e. a person must have been convicted after lawful charge and a lawful trial. Adjudication proceedings or the orders passed thereunder are not convictions in a criminal case. It has been held by this Hon'ble Court that adjudication proceedings are merely civil actions and no such thing viz. mens rea or guilty intention is either required to be pleaded or proved. The averments in para 14 of the main petition also lack material facts. The registration of the petitioner as a voter in the voters list of Mylapore Constituency has become final. There is no averment of illegality or irregularity attendant upon such registration. There could not be an adjudication of the aspects raised in paragraph 14 of the main petition without all necessary parties being impleaded in the petition. Thus, the main election petition which lacks material facts and which does not furnish any cause of action is liable to be rejected.