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PETITIONER: NANGTHOMBAM IBOMCHA SINGH

       Vs.

RESPONDENT: LEISANGHEM CHANDRAMANI SINGH & ORS.

DATE OF JUDGMENT13/09/1976

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ UNTWALIA, N.L. SINGH, JASWANT

CITATION:  1977 AIR  682            1977 SCR  (1) 573  1976 SCC  (4) 291

ACT:         Representation  of the People Act  1951--Sec.  77--Incurring         expenses  in excess    of what is  permissible--Interference         by this Court with appreciation of evidence by High Court.

HEADNOTE:             Respondent No. 1 was declared elected to Manipur  Legis-         lative  Assembly.  The appellant who was one  of  the  rival         candidates  filed  an Election Petition on two  grounds  (1)         Respondent  No. 1 was holding office of profit  inasmuch  he         was the speaker of the Assembly; and (2) the Respondent  No,         1 incurred election expenses in excess of what is  permissi-         ble.  The  High  Court negatived both  the  contentions  and         dismissed the Election Petition.             In  an appeal filed by the Election Petitioner  to  this         Court in view of the change in law with retrospective effect         the first ground was not available to the appellant in  this         Court.         The appellant contended                    (1  )  The sum of Rs. 500 paid to  his  party  by                  respondent No. 1 has been  wrongly excluded by  the                  High Court from the total expenditure.                    (2) The sum of Rs., 101.50 spent for the purchase                  of petrol and mobil oil was not shown by respondent                  No. 1 in his return.                    (3)  Respondent  No. 1 spent Rs.  1180/-  on  the                  microphone.  He has, however, shown Rs. 720 only in                  the return.                    (4) Respondent No. 1 used Jeep No. 7343 in  addi-                  tion  to Jeep No. 194 and the expenses incurred  on                  that jeep are not known.         Dismissing the appeal,             HELD:  It is well settled that this Court does not  nor-         mally interfere in an election appeal with the High  Court’s         appraisement  of  oral  evidence of  witnesses  unless  such         appraisement  is vitiated by some glaring infirmity. In  the         present case no such infirmity is shown. The evidence led by         the Election Petitioner is not cogent and sufficient to come         to  the  conclusion that various amounts mentioned.  by  him         were  actually  spent by Respondent No. 1.  As  far  as  the         payment  of Rs. 500/- is concerned, the same is admitted  by

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       respondent No. 1, but that was paid before the filing of the         nomination  and  what the Statute requires is  the  expenses         incurred  from the date of nomination till the date  of  the         declaration of the result. [575 B-C, 576G]             Stray and solitary use of a jeep for visiting a place  a         few hundred yards away from the residence of the  respondent         where some untowards incident had taken place cannot be held         tantamount to the use of the jeep for election purposes.         [577B-C]

JUDGMENT:         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 799 of 1975.             From the Judgment and Order dated 31-1-75 of the Gauhati         High Court, Imphal Bench in Election Petition No. 2/74.         Janardhan Sharma and Jitendra Sharma; for the appellant.             S.   V.  Gupte Naunit Lal and (Miss) Lalita  Kohli,  for         Respondent No. 1.         574         The Judgment of the Court was delivered by             KHANNA,  J. In the mid-term poll to Manipur  Legislative         Assembly held in February 1974, respondent No. 1  (hereinaf-         ter  referred  to as the respondent) was  declared’  elected         from  the Patsoi Assembly constituency.   The appellant, who         was one  of the rival candidates, filed an election petition         to  challenge the election of the respondent.  The  election         petition  was  dismissed  by the Gauhati  High  Court.   The         appellant has now come up in appeal against the judgment  of         the High Court.         The respondent, who was a candidate sponsored by the Manipur         people’s Party secured 5,033 votes, while the appellant  who         was  Iris  nearest rival secured 2,473 votes.    There  were         some  other candidates, but we are not concerned with  them.         The respondent was the Speaker of Manipur Legislative Assem-         bly  at  the relevant time.  The Assembly was  dissolved  in         1973.   The respondent, however continued to hold the office         of  the  Speaker fill March 8, 1974.   The  appellant  chal-         lenged the election of  the respondent on two main  grounds.         One of the grounds was that the respondent being Speaker  of         the  Assembly held an office of profit in the State  Govern-         ment  and  as such was disqualified to seek  election.   The         other   ground was  that  the  election  expenses   of   the         respondent   exceeded the prescribed limit of  Rs.    2,500.         It was also stated that some of the expenses incurred by the         respondent  for the purpose  of election had not been  shown         by  him  in  the return filed by him, and as  such,  he  was         guilty  of corrupt practice.  The High  Court repelled   all         the grounds, and in the result dismissed the election  peti-         tion.            In appeal before us Mr. Sharma on behalf of the appellant         has not challenged the finding of the High Court insofar  as         it  has held that the respondent was not  disqualified  from         seeking election because of the fact that he held the office         of the Speaker.   The  appellant indeed could not  challenge         this finding as we find that the Manipur Legislature has now         passed  the  Manipur Legislature (Removal  of  Disqualifica-         tions-, (Amendment) Act, 1975 (Manipur Act 1 of 1975).    As         a  result of this amendment, a person holding the office  of         Speaker  of Manipur Legislative Assembly shall not  be  dis-         qualified from seeking election to the Legislative  Assembly         of that State because of his holding that office. The amend-         ing  Act,  according to clause (2) of section  1,  shall  be         deemed  to have come into force on February 6, 1973.     The         fact  that the legislature is competent to enact such a  law

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       with  retrospective operation is now well-established   (see         Kanta  Kathuria  v.and Smt Indira Nehru Gandhi v. Shri   Rat         Manak Chand Surana(1)   above amending Act   the  respondent         Narain(2).   In view of. the above from seeking election  to         the respondent cannot be held to be disqualified on  account         of his having held the office   of the Speaker of the Legis-         lative Assembly of Manipur on account of his having held the         office of the Speaker of the Legislative Assembly.         (1) [1970] 2S.C.R. 830.       (2) [1976] 2 S.C.R. 347.         575         Mr. Sharma has assailed the finding of the High Court  inso-         far  as  it has held that the election expenses of  the  re-         spondent  did not exceed the prescribed limit of Rs.  2,500.         According to the return filed by the respondent, he incurred         a  total expense of Rs. 2,160 in connection with  his  elec-         tion.  It is urged. by Mr. Sharma that though the respondent         paid  Rs. 500 to the Manipur People’s party for  securing  a         ticket  of  that party, he did not show that amount  in  the         return  filed by him.   Adding that sum of Rs.   500 to  the         amount  of  Rs.  2,160 would take the  expenses  beyond  the         prescribed limit of Rs. 2,500.   The said amount of Rs. 500,         we  find,  was paid by the respondent  to  Manipur  People’s         party on December 5, 1973. According to an amendment made in         section 77 of the Representation of the People Act, 1951  by         Act  40 of 1975, every candidate at an election will  either         by  himself  or by his election agent, keep a  separate  and         correct account of all the expenditure  in  connection  with         the  election,  incurred or authorised by him  or   by   his         election  agent between the date on which he has been  nomi-         nated and the date of the declaration of the result thereof,         both   dates inclusive.The respondent admittedly  filed  his         nomination  on  January 23, 1974.The amount of Rs.  500  was         paid  by the respondent on December 5, 1973 long before  the         date on which the respondent filed his nomination. The  said         amount  of Rs. 500 consequently need not have been shown  in         the  return of expenses filed by the respondent,  nor  could         the  said amount be taken into consideration in  calculating         the total expenses of the respondent with a view to judge as         to whether his expenses exceeded the prescribed limit.    It         has not been disputed that Act 40 of 1975 by which amendment         was  made in section 77 of the Representation of the  People         Act, 1951 has a retrospective effect and was in operation at         the time the election with which we are concerned was held.            Mr. Sharma has next contended before us that an amount of         Rs.101/55  paise  was spent for the purchase of  petrol  and         mobil-oil by    the respondent in addition to the amount  of         Rs. 586 which was shown by the respondent to have been spent         by him on the  purchase  of petrol and mobil-oil.  According         to Mr. Sharma, petrol  and  mobil-oil worth Rs. 101/55  were         purchased by the respondent from Singh & Co., Imphal  during         the dates January 18 to 23, 1974.   In this respect, we find         that  the  evidence adduced by the appellant is not  at  all         satisfactory.   Two witnesses were examined by the appellant         in this connection.   One of them was the appellant himself,         who came into the witness box as PW 1.   It is apparent that         this witness has no personal knowledge in the matter.    The         other  witness examined by the appellant is R.B. Shukla,  PW         21.    The evidence of Shukla shows that he sold petrol  and         mobil-oil.    worth  Rs.  101/55 paise for  vehicle  bearing         number  194.   The respondent undoubtedly used jeep NLM  194         during  the elections.   There is nothing in the  record  of         Singh & Co. or in the evidence of PW Shukla to indicate that         the  petrol and mobil-oil worth Rs. 101/55 paise  were  sup-         plied for   jeep NLM 194 and not for another vehicle beating         that number.  The respondent in the course of his deposition

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       has  denied   having   purchased petrol and  mobil-oil  from         Singh & Co.         576             Mr.  Sharma  has also assailed the finding of  the  High         Court regarding the expenses incurred by the respondent.  on         microphones.  According to the retrun filed by the  respond-         ent,  he spent Rs.   720 on that account.  The case  of  the         appellant  is  that the respondent paid Rs.  1,130  to  Sena         Yaima  Sarma,  Rs. 1,180 to Lockey Sound Equipment  and  Rs.         1,000  to  Hijam Iboton Singh for  use  of   microphones  in         connection with his election.   As against that, the case of         the respondent is that he hired microphone from Lockey Sound         Equipment  and paid Rs.   720 only to that concern  in  that         connection.   There is no cogent evidence on the  record  to         indicate  that respondent paid anything over and  above  Rs.         720  on account of the use of microphones.   The High  Court         found  that the representatives of the firms from which  the         microphones  were  alleged by the appellant   to  have  been         taken  on hire by the respondent, were not examined as  wit-         nesses  and  that evidence adduced in this behalf was  of  a         most unsatisfactory character.  We find no cogent ground  to         take  a  different  view.  Emphasis has  been  laid  by  Mr.         Sharma  upon  the fact that in the return filed by  the  re-         spondent, the date of payment of Rs. 720 has been  mentioned         to be February 26, 1974  while according  to the evidence of         the respondent in the witness box, the said payment was made         on  March 24, 1974.   In this connection, we find  that  the         bill  of  Lockey  Sound Equipment for the  hire  charges  of         microphones  is dated February 26, 1974.  It seems that  the         respondent mentioned the date of the bill in connection with         that  payment.   No inference adverse to the respondent,  in         our opinion, can be drawn from the above crepancy  regarding         the date of payment.             Lastly,  it has been argued on behalf of  the  appellant         that  the respondent also used jeep MNS 7343 in addition  to         jeep  NLM 194.   It is stated that the expenses incurred  by         the respondent on account  of petrol and mobil-oil for  jeep         MNS  7343  were not shown by him in his  return.    In  this         respect  we  find there was no allegation  in  the  election         petition  as originally field regarding the use of jeep  MNS         7343 by the respondent.   This allegation was introduced  by         the  appellant  only  as a result of the  amendment  of  the         election  petition.   No documentary evidence was placed  on         the  file by the appellant to show that the respondent  used         jeep  MNS 7343 for the purpose of his election.   Oral  evi-         dence  was however, adduced by the appellant for  this  pur-         pose.  The  High Court found the evidence  adduced  in  this         conection  by  the appellant  to   be   wholly   unreliable.         After   hearing   Mr.  Sharma, we find no cogent  reason  to         take  a  contrary view.  It is well  established  that  this         Court   should   not  normally  interfere  in   an  election         appeal  with the High Court’s appraisement of oral  evidence         of   witnesses unless such appraisement is vitiated by  some         glaring infirmity.   No such infirmity has, been  brought to         our notice. Reference has been made by Mr.  Sharma to  first         information   report dated February 23, 1974 which  was  al-         leged  to  have been made by the respondent to  the  police.         No attempt was made by the appellant to bring on  record the         original  first  information report or to  prove  the  same.         The High Court in the circumstances held that the  appellant         could  not  rely upon a copy of the said  first  information         report.         577         Mr.    Sharma then contends that the appellant in  any  case         can rely upon the oral deposition of the respondent when  he

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       came into the witness box.   We have been taken through that         deposition,  and we find no warrant for the conclusion  that         jeep MNS 7343 was used by the respondent in connection  with         his  election.   All that has been stated by the  respondent         in  the  course of  his deposition is that on  February  23,         1974 he came to know of some untoward incident at a distance         of a few hundred yards away from the place of his residence.         He  went in jeep MNS 7343 towards that spot  and  thereafter         returned  in  that  jeep from that spot.    Such  stray  and         solitary use of the jeep for visiting the place of  incident         a few hundred yards away from the residence of the  respond-         ent cannot, in our opinion be held to tantamount to the  use         of  the jeep for election purpose. There is no  cogent  evi-         dence  to show that the jeep was used otherwise by  the  re-         spondent  for attending his election meetings or  for  other         election purposes.             As  a  result  of  the above,  we  dismiss  the  appeal.         Considering the fact that the first ground which constituted         the principal weapon of attack of the appellant against  the         validity  of  the  respondent’s election  is  not  available         because  of the change made in law during  the  pendency  of         the appeal, we direct that the parties should bear their own         costs of the appeal.         P.H.P.                                   Appeal dismissed.         578