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PETITIONER: S.KHADER SHERIFF

       Vs.

RESPONDENT: MUNNUSWAMI GOUNDER AND OTHERS.

DATE OF JUDGMENT: 15/09/1955

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN

CITATION:  1955 AIR  775            1955 SCR  (2) 469

ACT:   Election  Dispute-Non-disclosure by returned candidate  of sums paid to party funds in his return of election expenses- Such sums, if spent for purposes of election-Commencement of candidature--Expense  in  excess of  the  prescribed  limit- Election     declared     void     by     Tribunal-Resulting disqualification-Finding,   if   must   be   after   notice- Representation  of the People Act (No.  XLIII of 1951),  ss. 79(b), 99 proviso, 123(7), 140.

HEADNOTE:   The  appellant,  who  fought and won  the  election  as  a Congress  candidate, had applied to the Tamil  Nad  Congress Committee on 12-9-51 for party nomination stating his desire "to  contest  as  a Congress candidate  in  the  forthcoming election’?  and paid a sum of Rs. 500 of which Rs.  100  was subscription for membership and Rs. 400 a deposit, liable to he refunded in case the application was refused.  On 23-9-51 he  paid another gum of Rs. 500 as donation to the  District Congress  Committee.   On  13-11-51 he was  adopted  by  the Congress  as  its candidate.  His nomination paper  for  the election  was filed on 16-11-51.  The charge against him  in the  election  petition was that he had  failed  to  include these  two sums in his return of election expenses and  with the  addition  of these sums the maximum limit  of  election expenses prescribed for the constituency would be  exceeded. The  Tribunal  found  that both these  sums  were  paid  for election  purposes  and  the  maximum  prescribed  had  been exceeded and, therefore, s. 123(7) had been contravened  and declared  the election void under s. 100(2)(b) of  the  Act. The Tribunal also recorded a _finding that the appellant was liable to the disqualifications specified in s. 140, clauses (1)(a) and (2). Held, affirming the decision of the Tribunal, that the exact point  of  time from which a person must be deemed to  be  a candidate   within   the  meaning  of  s.   79(b)   of   the Representation of the People Act is the time when, with  the election  in  prospect,  he himself decides to  stand  as  a candidate  and communicates such decision to others  leaving no manner of doubt as to his intention.  This must be an met of his own volition and not that of other persons or  bodies adopting him as their candidate.

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The Lichfield case, [1895] 5 p.m. & H. 1, referred to. That  the  applicant was a candidate from the  date  of  his application to the Tamil Nad Congress Committee and the  two sums were election expenses incurred by him and should  have been shown in his return. 470   That the commencement of candidature in a particular  case is. a question of fact to be determined by the Tribunal  and its decision in this regard is not liable to be reviewed  by the Supreme Court in an appeal by special leave.   That  whether a particular sum paid at the time or on  the eve of the election was a donation, an act of charity or  an election expense must depend on whether or not such  payment was  open  to  the charge of having been made  in  order  to induce  the  voters to vote in favour of  the  donor.   This again is a question of fact to be decided by the Tribunal.  The Wigan case, [1881] 4 O’M. & H. 1, and The Kingston case [1911] 6 O’M. & H. 274, relied on.  The   Kennington  case,  (1886]  4  O’M.  &  H.  93,   held inapplicable.    That  it was not necessary for the Tribunal to  ’serve  a notice  under  the  proviso  to s. 99  of  the  Act  on  the appellant,  a party to the election petition, to enable  the Tribunal  to record his liability to disqualification  under s.  140 of the Act in respect of the chargelevelled  against him.

JUDGMENT:    CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No.  26  of 1955. Appeal  under Article 136 of the Constitution of India  from the Judgment and Order dated the 28th February, 1953, of the Election  Tribunal, Vellore, in Election Petition No. 84  of 1954. N.C.  Chatterjee,  (R.  Ganapathy Iyer, with him),  for  the appellant.  Naunit Lal, for respondent No. 1.  1955.   September,  15.   The Judgment  of  the  Court  was delivered by VENKATARAMA  AYYAR  J.-This is an appeal  by  special  leave against  the  order  of  the  Election  Tribunal,   Vellore, declaring  the election of the appellant to the  Legislative Assembly void on the ground that there had been a  violation of  section 123(7) of the Representation of the  People  Act No.  XLIII  of  1951.  Under that section, it,  is  a  major corrupt  practice for a candidate or his agent to  incur  or authorise  the incurring of expenditure in contravention  of the  Act  or any rule made thereunder.   Rule  117  provides that: "No expense shall be incurred or authorised by a                             471 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".  Under  Schedule  V,  the  maximum  expense  specified   for election  to  the Madras State Legislature  from  a  single- member  constituency,  such as Ranipet, is Rs.  8,000.   The return  of the expenses lodged by the appellant showed  that he had spent in all Rs. 7,063 for the election, and that was within  the  limit allowed.  The charge against him  in  the petition  was that he had failed to disclose in  his  return two  sums of Rs. 500 each, spent for election purposes,  and

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that with the addition of those amounts, the maximum  speci- fied  had been exceeded.  As regards the first  amount,  the facts  found are that on 12-9-1951 the appellant applied  to the  Tamil Nad Congress Committee for permission to  contest the  election  as a Congress candidate, and along  with  his application  he  paid  Rs.  500 out of  which  Rs.  100  was subscription  for membership and Rs. 400 deposit, which  was liable to be returned under the rules, in case the applicant was  not  adopted as the candidate, but not  otherwise.   In fact,  the appellant was adopted as the Congress  candidate, and  it  was  on  that ticket that he  fought  and  won  the election.  The second payment of Rs. 500 was on 23-9-1951 to the  North Arcot District Congress Committee, which  was  in charge of the Ranipet Constituency.  The Tribunal held  that both  these  sums  were paid for purposes  of  election  and should  have  been  included  in  the  return  made  by  the appellant,  that  if  they were  so  included,  the  maximum prescribed  was exceeded, and that therefore section  123(7) had been contravened, and accordingly declared the  election void  under  section 100(2) (b) of the Act.   The  appellant disputes  the correctness of this order.  The Tribunal  also recorded  as part of the order a finding that the  appellant had  become  subject to the disqualifications  specified  in section 140, sub-clauses  (1) (a)  and (2).   The  appellant attacks this finding on 60 472 the  ground  that  it was given without notice  to  him,  as required by the proviso to section 99.   The points that arise for decision in this appeal are  (1) whether  on  the facts found, there was a  contravention  of section  123(7) of Act No. XLIII of 1951and (2) whether  the finding  that  the appellant had become  disqualified  under section  140 is bad for want of notice under the proviso  to section 99 of the Act. (1) Taking first the sum of Rs. 500 paid by the appellant to the   Tamil  Nad  Congress  Committee  on   12-9-1951,   the contention of the appellant is that section 123(7) and  Rule 117 have reference only to expenses incurred by a  candidate or  his  agent,  that  the  appellant  was  nominated  as  a candidate  only  on 16-11-1951, and that as the  payment  in question was made long prior to the filing of the nomination paper,  the provisions aforesaid had no  application.   That raises  the  question  as to when  the  appellant  became  a ’candidate’  for purposes of section 123(7).  Section  79(b) of Act No. XLIII of 1951. defines a candidate thus:   "Candidate" means a person who has been or claims to  have been duly nominated as a candidate at any election, and  any such person shall be deemed to have been a candidate as from the  time when, with the election in prospect, he  began  to hold himself out as a prospective candidate".  Under this definition which applies to section 123(7), all election expenses incurred by a candidate from the  time when, with the election in prospect, he holds himself out as a prospective candidate and not merely from the date when he is  nominated, will have to enter into the reckoning  ’under Rule  117  read with Schedule V. That the  election  was  in prospect  when the amount of Rs. 500 was paid is clear  from the  very  application  of  the  appellant  dated  12-9-1951 -wherein  he  states  that  he  desires  "to  contest  as  a ’Congress  candidate in the forthcoming election".  That  is not  disputed  by the appellant.  What he contends  is  that though  the  election was in prospect, he bad not  become  a prospective  candidate at that time, and that he  became  so only when the Congress

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473 adopted  him as its candidate on 13-11-1951.  It was  argued that  it was open to the Congress Committee either to  adopt him  as its candidate or not, that if it did not adopt  him, he  could not, under the rules to which he  had  subscribed, stand  for  election  at all, that  until  he  was  actually adopted   therefor,   his  candidature  was   nebulous   and uncertain, and that the application was consequently nothing more  than  a  preliminary step-in-aid  of  his  becoming  a prospective candidate.  The  question  when a person becomes a  candidate  must  be decided  on  the  language of  section  79(b).   Under  that section, the candidature commences when the person begins to hold   himself   out  as  a  prospective   candidate.    The determining   factor  therefore  is  the  decision  of   the candidate  himself, not the act of other persons  or  bodies adopting him as their candidate. In The Lichfield, case(1) at page 36, Baron Pollock observed:  "I think the proper mode of judging a question of this kind is  to  take  it from the point of  view  of  the  candidate himself.   Every man must judge when he will  throw  himself into the arena. But it is his own choice when he throws down the glove and commences his candidature".   When,  therefore,  a question arises under  section  79(b) whether a person had become a candidate at a given point  of time,  what  has to be seen is whether at that time  he  had clearly and unambiguously declared his intention to stand as a  candidate, so that it could be said of him that  he  held himself out as a prospective candidate.  That he has  merely formed an intention to stand for election is not  sufficient to  make him a prospective candidate, because it is  of  the essence  of the matter that he should bold himself out as  a prospective candidate.  That can only be if he  communicates that  intention  to  the outside  world  by  declaration  or conduct  from which it could be inferred that he intends  to stand  as  a candidate.  Has that been established  in  this case?  When the appellant made the payment of Rs. 500 to (1)  5 O’M. & H. 1. 474 the  Tamil Nad Congress Committee, did he merely  evince  an intention  to stand as a candidate, or did he  hold  himself out as a prospective candidate?  The application contains  a clear declaration of his intention to contest the  election, and that declaration is backed by the solemn act of  payment of   Rs.   500.   The  appellant  had   thus   clearly   and unambiguously  conveyed  to the Committee his  intention  to stand  as a candidate, and he thereby became  a  prospective candidate  within the meaning of section 79(b).  The  possi- bility  that  the  Congress  might  not  adopt  him  as  its ,candidate  does  not,  as  already  mentioned,  affect  the position, as the section has regard only to the volition and conduct  of the candidate.  It is true that if the  Congress did not adopt him, the appellant might not be able to  stand for  election.   But such a result is implicit in  the  very notion  of  a prospective candidate, and does  not  militate against-his becoming one from the date of his application.  It  was also urged for the appellant that  the  declaration was made not to the constituency in the North Arcot District but  to  the Central Committee at Madras,  and  that  unless there  was  proof  of holding out  to  the  electorate,  the requirements of section 79(b) were not satisfied.  It may be that  the holding out which is contemplated by that  section is  to the Constituency; but if it is the Central  Committee that  has to decide who shall be adopted for  election  from

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the  concerned  constituency, any declaration  made  to  the Committee  is,  in  effect, addressed  to  the  constituency through its accredited representative.  The question when  a candidature  commences  is, as has been held over  and  over again,  one of fact, and a decision of the Tribunal on  that question  is  not  liable to be reviewed by  this  Court  in special appeal.  In the present case, the Tribunal has, in a well-considered judgment, formulated the correct  principles to  be applied in determining when a candidature  commences, examined the evidence in the light of those principles,  and recorded  a  finding that the appellant  was  a  prospective candidate when he made the payment of 475 Rs.  500  on 12-9-1951, and we do not find  any  ground  for differing from it.  Then,  there  is the payment of Rs. 500 made to  the  North Arcot   District  Congress  Committee  on  23-9-1951.    The contention of Mr. Chatterjee with reference to this  payment is  that  unlike the payment dated 12-9-1951, this  was  not spent for purposes of election but was donation made to  the Committee  out  of  philanthropic  motives.   It  has   been frequently pointed out that while it is meritorious to  make a  donation for charitable purposes, if that is made at  the time or on the eve of an election, it is open to the  charge that  its real object was to induce the electors to vote  in favour  of  the  particular candidate, and  that  it  should therefore  be  treated as election expense.   In  The  Wigan Case(1), Bowen, J. observed:  "........  I  wish to answer the suggestion that  this  was merely charity.  Charity at election times ought to be  kept by politicians in the background........ In truth, I  think, it   will  generally  be  found  that  the   feeling   which distributes  relief  to the poor at  election  time,  though those  who are the distributors may not be aware of  it,  is really not charity, but party feeling following in the steps of charity, wearing the dress of charity, and mimicking  her gait".  In The Kingston Case(2), Ridley, J. said:  "Now assume for the moment that a man forms a design, which at  the time is in prospect, for that is the point;  yet  if circumstances  alter, and an election becomes  imminent,  he will go on with that design at his risk".  It would again be a question of fact whether the payment of Rs.  500  by the appellant on 23-9-1951 was a  pure  act  of charity  or was an expense incurred for  election  purposes. It  was  admitted  by  the Secretary  -of  the  North  Arcot District Congress Committee that it was usual for the  Tamil Nad Congress Committee to consult the local Committee in the matter  of adoption of candidates, and that at the time  the payment  was made, it was known that the appellant  had  ap- plied to be adopted by the Congress.  Exhibit A(7) (1) 4 O.M. & H. 1, (2) 6 O’M. & H. 374, 476 which  is a statement of receipts and payments of the  North Arcot  District Congress Committee for the period  24-9-1951 to  24-5-1952  shows  that the  Committee  started  with  an opening  balance  of Rs. 7-12-2,  and that  various  amounts were  collected  including the sum of Rs. 500  paid  by  the appellant and utilised for election expenses.  The  Tribunal held  on a consideration of these facts that the payment  in question  could  not  be  regarded  as  innocent,  and  "not motivated by the desire to obtain the recommendations of the North  Arcot District Congress Committee for candidature  of the  first  respondent".   No  ground  has  been  shown  for

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differing from this conclusion.    It  was finally contended for the appellant that the  two payments dated 12-9-1951 and 23-9-1951 could not be said  to be   expenses  incurred  on  account  of  the  conduct   and management  of an election, and reliance was placed  on  the decision  in The Kennington Ca8e(1), where it was held  that payments  made  for the running of a newspaper  started  for supporting  a  candidate were not expenses incurred  in  the conduct  and  management of an election.  The facts  of  the present  case  have no resemblance to those  found  in  that case, and the following comment on that decision in Parker’s Election  Agent and Returning Officer, Fifth  Edition,  page 241 is instructive:   "But  this  decision could not be safely  followed  except where the facts are precisely similar". On the findings recorded above, the expenses incurred by the appellant  come  to  Rs. 8,063,  and  the  corrupt  practice specified  in  section  123(7)  has  been  committed.    The election  was  therefore  rightly set  aside  under  section 100(2)(b) of Act No. XLIII of 1951.  (2) It  is  next  contended  for  the  appellant  that  the Tribunal  was in error in recording as part of the  order  a finding  that  by  reason of the  contravention  of  section 123(7),   the   appellant   had  become   subject   to   the disqualification  specified in section 140,  without  giving notice to him as required by the proviso to section (1)  4 O’M. & H, 93 477 99.  The question whether a party to an election petition is entitled  to  a notice under the proviso in respect  of  the very charges which were the subject-matter of enquiry in the petition itself, has been considered by this Court in  Civil Appeal No. 21 of 1955, and it has been held therein that  if the party had opportunity given to him in the hearing of the petition  to  meet  the very charge in respect  of  which  a finding is to be recorded under section 99 (1) (a), then  he is  not entitled to a further notice in respect of the  same matter, under the proviso.  In the present case, the finding under  section 99(1) (a) relates to the very payments  which were the subject-matter of enquiry in the election petition, and  therefore  no notice was required to be  given  to  the appellant under the proviso.  This objection also fails, and the appeal must accordingly be dismissed.   The respondent has stated through his counsel Shri  Naunit Lal  that he does not propose to contest the appeal.   There will accordingly be no order as to costs.                      Appeal dismissed.