S. Khader Sheriff Vs. Munnuswami
Gounder & Ors  INSC 37 (15 September 1955)
AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN
CITATION: 1955 AIR 775 1955 SCR (2) 469
Election Dispute-Non-disclosure by returned
candidate of sums paid to party funds in his return of election expensesSuch
sums, if spent for purposes of election-Commencement of candidature--Expense in
excess of the prescribed limitElection declared void by Tribunal-Resulting
disqualification-Finding, if must be after noticeRepresentation of the People
Act (No. XLIII of 1951), ss. 79(b), 99 proviso, 123(7), 140.
The appellant, who fought and won the
election as a Congress candidate, had applied to the Tamil Nadu 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.
The Lichfield case,  5 p.m. & H. 1,
That the applicant was a candidate from the
date of his application to the Tamil Nadu Congress Committee and the two sums
were election expenses incurred by him and should have been shown in his
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,  4 O'M. & H. 1, and
The Kingston case  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 charge leveled
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 there under. 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
Under Schedule V, the maximum expense
specified for election to the Madras State Legislature from a singlemember
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 that with the addition of those amounts, the maximum
specified had been exceeded. As regards the first amount, the facts found are
that on 12-9-1951 the appellant applied to the Tamil Naduu 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 Naduu 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
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 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 there for, 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
In The Lichfield, case(1) at page 36, Baron
"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
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 Nadu 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 possibility
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 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 Nadu
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 applied 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 differing from this
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 Kenning ton 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.