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PETITIONER: RANANJAYA SINGH

       Vs.

RESPONDENT: BAIJNATH SINGH AND OTHERS.

DATE OF JUDGMENT: 29/09/1954

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. BOSE, VIVIAN HASAN, GHULAM

CITATION:  1954 AIR  749            1955 SCR  671  CITATOR INFO :  R          1971 SC 267  (33)  R          1971 SC1295  (16,18,85)  R          1975 SC 308  (12,14)  RF         1975 SC2299  (117,492,495,501)  D          1985 SC1133  (6,11)  F          1987 SC1577  (19)  R          1989 SC1737  (11)

ACT:     Representation  of  the  People  act,  1951  (XLIII   of 1951),ss.  77,  123(7), 124(4)-Gist of corrupt  practice  as defined in s. 123(7).

HEADNOTE:     Section 123(7) of the Representation of the People  Act, 1951,  shows  clearly that in order to amount to  a  corrupt practice   the  excess  expenditure  must  be  incurred   or authorised  by a candidate or his agent and the  employment. of  extra  persons must likewise be by a  candidate  or  his agent.       The charge against the appellant was, inter alia, that the  Manager, Assistant Manager, 20 Ziladars of  Amethi  and their  peons and orderlies had worked for the  appellant  in connection  with  the  election.   The  view  taken  by  the Election  Tribunal  that though the estate belonged  to  the father  of the appellant, nevertheless as the appellant  was the  heir apparent and actually looked after the  estate  on behalf  of the old and infirm proprietor, these servants  of the  estate  were "virtually" his "own" servants  and  could properly be regarded as having been employed for payment  by the appellant, was untenable because though s. 77 of the Act uses the words SC who may be employed for payment",  without indicating  by whom employed or paid, the gist of a  corrupt practice  as  defined in B. 123 (7) of the Act is  that  the employment of extra persons and the incurring or authorising of extra expenditure must be by the candidate or his agent.       The   appellant   accordingly,  could   not   in   the circumstances  of the present case, be held to be guilty  of any corrupt practice under s. 123(7) as alleged against  him

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and  therefore could not be held to have been guilty of  any minor practice under s. 124(4) of the Act. ,      Joseph  Forster Wilson and Another v.  Sir  Christopher Furness (6 O’Mally & Hardocastle’s Report of Election Cases, p. 1), referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 73 of 1954.      Appeal by Special Leave against the Judgment and  Order dated  the  11th  day of February,  1954,  of  the  Election Tribunal, Allahabad. in Election Petition No. 252 of 1952. 672 N.C.  Chatterjee  and  G. N.  Kunzru,  (Rameshwar  Nath  and Rajinder Narain, with them) for the appellant. Veda Vyasa (G.  C. Mathur, with him) for respondent No. 1. 1954.   September  29.   The  Judgment  of  the  Court   was delivered by DAB  J.-Kunwar Rananjaya Singh, the appellant before us,  is the  son  of Raja Bhagwan Bux Singh of Amethi.  He  was  the successful  candidate  at an election to the  Uttar  Pradesh Legislative Assembly from Amethi (Central) constituency  the polling in respect of which took place on the 31st  January, 1952,  and  the  result whereof was  announced  on  the  6th February,  1952, and finally published in the Uttar  Pradesh State  Gazette on the 26th February, 1952.  The  respondent, Baijnath  Singh, who was one of the unsuccessful  candidates filed an election petition calling in question the  election of the appellant.  Three other unsuccessful candidates  were also  impleaded  as respondents.  The grounds on  which  the election  was  challenged were that the  appellant  himself, together  with his own and his father’s servants  and  other dependents  and agents, committed various corrupt  practices of  bribery,  exercise of undue  influence,  publication  of false and defamatory statements and concealment of  election expenses  as per particulars set forth in the  petition  and the  schedules thereto.  He prayed that the election of  the appellant be set aside and that he, the said respondent,  be declared  to  have been duly elected.  The  appellant  alone contested the petition.  In his written statement he  denied each  and  every  one of the charges  of  corrupt  practices levelled  against  him  and  he also  filed  a  petition  of recrimination challenging the conduct of the said respondent at  the  election.  The said respondent denied  the  charges imputed  to him.  Altogether 15 issues were raised,  namely, eight.  on  the election petition and 7 on the  petition  of -recrimination.   All  the  7  issues  arising  out  of  the petition  of  recrimination  were  found  by  the   tribunal constituted for hearing of the election petition against the appellant  and the petition of recrimination was  dismissed. The appellant has not                             673 contested  the correctness of those findings before  us  and nothing  further  need be said about them.  As  regards  the issues  arising on the main election petition  the  election tribunal found in favour of the appellant on issues Nos.  1, 2,  4,5,  6  and  7 but decided  issue  No.  3  against  the appellant.  That issue was as follows:3  Did respondent No. I employ for election more persons  than authorised by law?     Did respondent No. I incur the expenditure shown in  the list  as  "Heads of other concealed  expenditures?"  Did  he exceed the prescribed limit of expenditure for election ?"     The above issue related to charges made out in paragraph

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6  of the election petition and the list of particulars  set out in Part III of the schedule thereto.  The particulars in that   part  were  -grouped  under  two  main  heads,   each containing  several  items.   The  first  head  referred  to persons  alleged  to have been employed on  payment  far  in excess of the prescribed number and not shown in the  return of  election  expenses.   The  second  bead  of  particulars contained   other  alleged  concealed   expenditures.    The election  tribunal  held in favour of the appellant  on  all items of charges under both heads in Part III, except  items (ii)  and (iii) of the first bead.  Item (ii)  charred  that all the paid Ziladars of Amethi estate who were about 20  in number assisted by their peons and orderlies worked for  the appellant and item No. (iii) complained that the Manager and the  Assistant Manager of that estate also worked  for  him. The  tribunal  held  that the number of  all  these  persons coming   within  these  two  categories  far  exceeded   the prescribed  number  of persons who could be employed  in  an election and their salary for the period they worked for the appellant  in connection with the election, if added to  the admitted   election  expenses,  would  exceed  the   maximum expenditure  permissible  for  contesting  a   single-member constituency.   The  tribunal,  therefore,  held  that   the appellant  was  guilty, under both these heads,  of  corrupt practice as defined, in section 123(7) of the Representation of  the People Act, 1951, and was consequently liable to  be dealt with under section 100(2) (b) and section 145 of  that Act.                             674 These findings as to employment of extra persons on  payment and the expenditure of money in excess of 7h the permissible maximum  election  expenses necessarily led to  the  further finding  that inasmuch as these expenses had not been  shown in the appellant’s return of election expenses the appellant was  also guilty of a minor corrupt practice as  defined  in section  124(4) of the Act and was liable to be  dealt  with under section 100(2) (a) and section 145 of the Act.  In the result,  the  tribunal under the general issue  No.  8  only declared  the election of the appellant to be  void.   Hence this appeal filed by the unseated candidate with the special leave of this Court.     Section  77  of the Representation of  the  People  Act, 1951, provides that the maximum scales of election  expenses at elections and the numbers and descriptions of persons who may  be  employed for payment in  connection  with  election shall  be  as  may be prescribed.  As  regards  the  maximum expense,  rule  117  lays  down that  no  expense  shall  be incurred or authorised by a candidate or his election  agent on account of or in respect of the conduct and management of an election in any one constituency in a State in excess  of the maximum amount specified in respect of that constituency in Schedule V. The maximum amount specified in that schedule in  respect  of a singl emember constituency  in  the  Uttar Pradesh  is  only Rs. 8,000.  Rule 118  prescribes  that  no person  other  than  or in addition to  those  specified  in Schedule VI shall be employed for payment by a candidate  or his election agent in connection with an election.  Schedule VI allows I election agent, 1 counting agent, 1 clerk and  1 messenger at all elections.  It also allows, in addition  to these, 1 clerk and 1 messenger for every 75,000 electors and 1  polling agent and 2 relief agents for each polling  booth and I messenger at each polling booth.  The contravention of the  provisions of section 77, read with rules 117 and.  118 and  Schedules  V  and VI, is made a  corrupt  -practice  by section  123(7) Section 123(7) -clearly shows that in  order

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-to amount -to a corrupt- practice the excess expenditure  - must  be incurred or authorised by a candidate or his  agent and                             675 the  employment  of  extra persons must  likewise  be  by  a candidate or his agent.     The  charge against the appellant was, inter alia,  that the Manager, Assistant Manager, 20 Ziladars of Amethi estate and  their peons and orderlies had worked for the  appellant in  connection  with the election.  The  tribunal  took  the view-we  think  quite erroneously that although  the  estate belonged  to the father of the appellant,  nevertheless,  as the  appellant  was the heir apparent  and  actually  looked after the estate on behalf of the old and infirm proprietor, these  servants  of the estate were  "virtually"  his  "own" servants  and  could  properly be regarded  as  having  been employed for payment by the appellant.  The Learned advocate appear ing for the respondent frankly and properly  conceded that  he could not support this part of the finding  of  the tribunal.   He, however, contended, relying on the  language used in section 77, that if the number of persons who worked for  payment  in connection with the election  exceeded  the maximum  number  specified  in Schedule VI,  the  case  fell within the mischief of the relevant sections and the  rules, no  matter who employed them or who made payments  to  them. It  is  true  that section 77 uses the  words  "who  may  be employed for payment" without indicating by whom employed or paid  but  it  must be borne in mind that  the  gist  -of  a corrupt  practice as defined in section 123(7) is  that  the employment of extra persons and the incurring or authorising of  excess  expenditure  -must be by the  candidate  or  his agent.   The provisions of rules 117 and 118 are to be  read in  the  light  of this definition of  a  corrupt  practice. Indeed, these rules follow the language of section 123(7) in that  they prohibit the employment of persons other than  or in  addition  to  those specified in Schedule  VI,  and  the incurring  or  authorising of expenditure in excess  of  the amount.  specified  in Schedule V, and in both  cases  by  a candidate or his agent.  Section 77 must, therefore, be read in  a manner consonant with section 123(7) and rule 117  and and 11 8. In this view of the matter the observation made by Phillimore J. in Joseph Porster Wilson and, 676 Another  v.  Sir Christopher Furness(1), relied  on  by  the appellant  and referred to in the judgment of  the  tribunal are  quite apposite.  There can be no doubt that in the  eye of the law these extra persons were in the employment of the father of the appellant and paid by the father and they were neither  employed  nor  paid by the  appellant.   The  case, therefore, does not fall within section 123(7) at all and if that  be  so,  it cannot come  within  section  124(4).   It obviously was a case where a father assisted the son in  the matter of the election.  These persons were the employees of the  father and paid by him for working in the  estate.   At the  request  of  the  father  they  assisted  the  son   in connection  with the election which strictly  speaking  they were  not  obliged to do.  Was the position in  law  at  all different from the position that the father had given  these employees  a  holiday  on  full  pay  and  they  voluntarily rendered assistance to the appellant in connection with  his election?   We  think not.  It is clear to us that  qua  the appellant  these persons were neither employed nor  paid  by him.   So far as the appellant was concerned they were  mere volunteers  and  the  learned advocate  for  the  respondent admits  that  employment of volunteers does  not  bring  the

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candidate  within the mischief of the definition of  corrupt practice  as  given  in  in  section  123(7).   The  learned advocate, however, contended that such a construction  would be  against  the  spirit  of  the  election  laws  in   that candidates who have rich friends or relations would have  an unfair  advantage over a poor rival.  The spirit of the  law may  well  be an elusive and unsafe guide and  the  supposed spirit.  can certainly not be given effect to in  opposition to  the  plain language of the sections of the Act  and  the rules  made there under.  If all that can be said  of  these statutory  provisions  is that construed  according  to  the ordinary, grammatical and natural meaning of their  language they  work injustice by placing the poorer candidates  at  a disadvantage  the  appeal must be to Parliament and  not  to this Court. (1)  6  O’Mally and Hardcastle’s Report of  Election  Cases, page I at page 6,               677     On a consideration of the relevant provisions of the Act and the rules and the arguments advanced before us we are of opinion  that the appellant cannot in the  circumstances  of this case be held to be guilty of any corrupt practice under section 123(7) as alleged against him.  It follows from this that not having incurred any expenditure over and above what was  shown  by  him in his return of  election  expenses  he cannot  be  said  to have concealed  such  expenditure  and, therefore,  he  cannot be held to have been  guilty  of  any minor corrupt practice under section 124(4) of the Act.   In the  view we have taken, namely, that these extra  men  were not  employed or paid by the appellant, it  is  unnecessary, for  the  purpose of this appeal, to  discuss  the  question whether, if one’s own servants are also utilised or employed in the conduct of the election, their salary for the  period they  are  so  utilised or employed should  be  regarded  as election  expenses  and  shown in the return.   On  that  we prefer  not  to express any opinion on  this  occasion.   No other  point  having been raised we allow this  appeal  with costs.                                Appeal allowed.