Case: S.Khader Sheriff Vs. Munnuswami Gounder And Others

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 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 tha the 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 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 onthe ground that it was given without notice to him, as required by the proviso to section 99.

Reasoning: (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 prospectivethis 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 Congressadopted 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 prospectiveapplication 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 hiswas 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 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 ofRs. 500 on 12-9-1951, and we do not find any ground for differing fromthe 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 toThe 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