Shri Dayanand Narvekar vs Shri Pradeep Janardhan Khaunte

N.A. Britto, J.—This concerns paras 11 and 12 of the affidavit in evidence given by the petitioner. The said two paras 11 & 12 correspond to the pleadings of paras 9 & 10 of the election petition. The respondent by application dated 19/09/2008 seeks their deletion. Heard learned Counsel on behalf of both parties. The distribution of the said T-shirts and caps took place on 15/04/2007 prior to the respondent was nominated as a candidate. Relying on the case of Mohan Rawale V/s. Damodar Tatyaba @ Dadasaheb & Ors. (1994 (2) SCC 392), this Court by order dated 13/06/2008 held that the allegation of corrupt practices in relation to the distribution of T-shirts and caps and the expenditure on account of food would be required to be kept outside the purview of the petition. This is recorded in para 24 of the said order. Shri Dessai, the learned Senior Counsel on behalf of the respondent contends that if the averments of the said paras of the petition as regards the expenditure on T-shirts, caps and food had to be kept outside the purview of the petition then certainly petitioner could have given no evidence as regards those aspects which have been referred to in paras 11 and 12 of the affidavit in evidence. Learned Senior Counsel has placed reliance on the case of Ananga Uday Singh Deo V/s. Ranga Nath Mishra & Ors. (2002 (1) SCC 499). However, I must hasten and say that the said case is inapplicable to the facts of the case at hand for it was held therein by the Apex Court that no evidence could be led on a plea not properly raised and issue framed. That is not the case at hand.

Shri Walwaikar, learned Counsel on behalf of the petitioner has contended that the facts stated by the petitioner in paras 11 and 12 of the affidavit in evidence are relevant to show that the respondent is a person who was prone to corrupt practices. Learned Counsel further submits that the T-shirts and the caps were procured by the petitioner before the election but the petitioner included them in his election expenditure and this can be seen from para 22 of the reply filed by the respondent wherein the respondent has stated that 500 T-shirts and 500 caps were made and delivered to the respondent before 15/04/2007. Respondent has further stated that some workers had put sports caps and T-shirts in the rally held from Malim Jetty on 15/04/2007, which was organised by Aldona Block Congress (I). However by way of an abundant caution the amount spent on T-shirts and caps has been shown in the statement of election accounts submitted by the respondent to the appropriate authority. The respondent has reiterated that T-shirts and caps were also distributed on 15/04/2007 during the rally. Counsel on behalf of the petitioner submits that in view of the admission of the respondent, the statements made by the petitioner in the said affidavit in evidence would be relevant to show that there is fabrication of accounts.

The Apex Court in the case of Mohan Rawale V/s. Damodar Tatyaba @ Dadasaheb & Ors. (supra) although had stated that the expenditure incurred in so far as it refers to period prior to declaration of election would not amount to the allegations of corrupt practice, as far as the relevancy and admissibility of the said allegations, for other purposes was kept open, without expressing any opinion and it was left to the High Court to consider the same at appropriate time. In my view, although the said expenditure towards the caps and the T-shirts was done according to the respondent on 15/04/2007, prior to the elections were declared, prima facie, it appears that there was no reason as to why the said expenditure had to be shown in the accounts filed by the respondent, of election expenditure and to that extent it would be relevant for the purpose of the petition, though per se it would not be a ground to declare the election void. In the above view of the matter, I am not inclined to delete the said paras. Consequently, the application is hereby dismissed.