ivil 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
NC 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 1237 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 8000
The return of the expenses lodged by the appellant showed that he had spent in all Rs 7063 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 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 1237 had been contravened and accordingly declared the election void under section 1002 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 1237 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 1237 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 1237
Section 79b 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 1237 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 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 79b
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 case1 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 79b 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 1 474 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 79b
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 79b 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 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 Case1 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 Case2 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 A7 1  2  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 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 Ca8e1 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 8063 and the corrupt practice specified in section 1237 has been committed
The election was therefore rightly set aside under section 1002b 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 1237 the appellant had become subject to the disqualification specified in section 140 without giving notice to him as required by the proviso to section 1 477 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 991 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


Summary:
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 section 1237 had been contravened and declared the election void under section 1002b of the Act
The Tribunal also recorded a _finding that the appellant was liable to the disqualifications specified in section 140 clauses 1a 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 section 79b 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
The Lichfield case 1895 5 pm  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  and The Kingston case  relied on
The Kennington case 1886  held inapplicable
That it was not necessary for the Tribunal to serve a notice under the proviso to section 99 of the Act on the appellant a party to the election petition to enable the Tribunal to record his liability to disqualification under section 140 of the Act in respect of the chargelevelled against him