Rajamannar, C.J.
(1) This is an appeal against the order of the Election Tribunal, Madurai, in Election Petition No. 86 of 1957 filed in the following circumstances. In the recent general elections to the Madras State Assembly four candidates went to the polls to contest the seat for the Karaikudi Constituency in the Ramanathapuram district. There were others who had filed their nomination papers but they withdrew before the due date. Polling took place on 1-3-1957. The four candidates obtained votes as under:
1. Sri M. A. Muthiah Chettiar 24,2232. Sri Sa. Ganesan 23,3653. Sri R. M. Subbiah 2,3484. Sri U.P.L. Venkatachalam Chettiar 1,171
Muthiah Chettiar having secured the largest number of votes was declared duly elected on 5-3-1957. Sa Ganesan filed an election petition before the Election Commission on 15-4-1957 and it was referred to the Election Tribunal at Madurai for trial. Muthiah Chettiar was the sole respondent and the prayer was for an order declaring the election of the returned candidate, M. A. Muthiah Chettiar to be void. The petitioner alleged that by reason of the respondent being disqualified for being chosen to fill a seat in the Madras Legislative Assembly on the ground stated in paragraph 5 of the petition had by reason of the corrupt practices set out in paragraph 6 the election of the respondent was liable to be declared void under S. 100(1)(a), (b) and (d) of the Representation of the People Act, 1951. These provisions run thus:
'100. Subject to the provisions of sub-sec. (2) if the Tribunal is of opinion--
(a) that on the date of his election a returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution of this Act; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the Tribunal shall declare the election of the returned candidate to be void;'
Section 123 of the Act enumerates seven categories of corrupt practices in sub-clauses 1 to 7. The petitioner alleged that the respondent had committed corrupt practices set out in clauses 1, 2, 3, 4 and 6. The Petition and the schedules contained over fifty instances of corrupt practices. Voluminous evidence oral and documentary was recorded. There were 106 witnesses for the petitioner and 52 for the respondent. 314 exhibits were filed on behalf of the petitioner and 114 on behalf of the respondent. The trial occupied several days and the order of the Tribunal runs into 125 paragraphs. the Tribunal held that the respondent was not disqualified and except the corrupt practice under S. 123(b) of the Act none of the other corrupt practices was proved. The Tribunal held that the respondent was guilty of corrupt practice under S. 123(6) of the Act and consequently he declared the election of the respondent to be void. The respondent (M. A. Muthiah Chettiar) has filed the above appeal. In this judgment to avoid any confusion the election petitioner who is the respondent before us will be referred to as the petitioner and the returned candidate who is the appellant before us and who was the respondent in the election petition will be referred to as the respondent.
(2) The corrupt practice set out in clause 6 of S. 123 is 'the incurring or authorising of expenditure in contravention of S. 77'. Sec. 77 is in the following terms:--
'(1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive.
(2) The account shall contain such particulars, as may be prescribed.
(3) The total of the said expenditure shall not exceed such amount as may be prescribed.'
(3) Paragraphs 19, 20 and 21 of the Election Petition contain allegations relating to this charge. Paragraph 19 runs thus:
'The respondent has not included in his account various items of expenditure incurred by him in connection with the election; the full particulars of such instances of non-inclusion of expenditure incurred by the respondent in connection with his election are given below.'
15 instances are given as (a) to (o).
(4) Paragraphs 21 and 22 runs as follows:--
'21. The petitioner submits that by reason of the facts and particulars stated in the abve paragraphs the respondent had incurred or authorised the expenditure in contravention of S. 77 of the Act and has thereby committed a corrupt practice under S. 123(6) of the Act;
22. The petitioner states that by reason of the respondent being disqualified for being chosen to fill a seat in the Madras Legislative Assembly on the ground stated in paragraph 5 above and by reason of the corrupt practices set out in paras 6 to 21 above read with the schedules I to IV the election of the respondent is liable to be declared void. The result of the election has also been materially affected for the same reasons and on his ground also, the respondent's election is liable to be declared void. The petitioner, therefore, submits that the respondent's election is liable to be declared void under S. 100(1)(a), (b) and (d) of the Act.'
The Tribunal found that several of the instances given in paragraph 19 of the petition were not proved and his findings regarding them were not challenged by the learned counsel for the respondent except as regards two instances. We shall proceed to deal with the instances which formed the subject matter of arguments before us. The first instance is set out in paragraph 19(a) which runs as follows:
'The petitioner has utilised eight propaganda vans, Registration Nos. of 3 of the vans are T. C. T. 4641, M. D. C. 946 and M. S. Y. 4213. During the entire period of the election campaign of the respondent the respondent has not disclosed in his account of election expenses either the price of the propaganda vans or the hire charges or the charges for depreciation of the vans, for the remuneration of the drivers of the vans, or the motor vehicles tax payable in respect of those vans or the charges for the microphone equipment fitted to the propaganda vans.'
Paragraphs 78 of the written statement of the respondent deals with this charge thus:
'The allegations in paragraph 19(a) are incorrect and misleading. For propaganda purposes during the election only three vans and one jeep have been used and these were voluntarily given by the owners and all expenses actually incurred or authorised to be incurred in connection with these vans by the respondent have been shown in the accounts.'
The Tribunal found that three propaganda vans were used throughout the election campaign for a period of over a month and a jeep van for over two weeks for purposes of election from the middle of February 1957 and that they were voluntarily given for the respondent's use by their owners. It was also not proved that any money actually spent for the running of the vehicles had been omitted from the account of election expenses. Nevertheless the Tribunal went on to deal with the question whether on account of the user of three vans and one jeep for the purpose of the election though they were voluntarily given by their owners, the respondent was liable to include any amount in his account of election expenses. He held that though there was no evidence adduced by the petitioner reasonable estimate has to be made of the hire which would have been paid for the vans and the jeep if they had not been given freely by their owners. The Tribunal then proceeded to make a calculation on his own estimate for which there was no support in the evidence, namely, at the rate of Rs. 15 per day for the three vans for over a month and the jeep van for over 15 days. On that calculation he arrived at a figure round about Rs. 1500.
Learned counsel for the respondent contended firstly that the petitioner's definite charge was that the respondent had actually paid for the vehicles and not that a notional amount should be deemed to have been expended by the respondent and secondly he contended that even so, there was no evidence whatever adduced by the petitioner as to the reasonable rate of hire that could be charged for the vehicles and the Tribunal has no authority to import his own idea of reasonable hire and use it as evidence and lastly he raised the question of law that the reasoning and conclusion of the Tribunal were not warranted by the statutory provisions. We shall deal with these several contentions later as they are more or less common to most of the other instances as well.
(5) The next instance is in paragraph 19(c) which is stated as follows:
'The respondent has not included in his account of election expenses the expenditure incurred by him on 5-3-1957 for the travelling charges, batta and fees for all his four counting agents, namely, Mr. Nagaraja Iyer, Advocate, Pudukottai, Mr. Pattu Iyer of Madras, Mr. Vaithi Subramania Iyer of Madurai and Mr. R. Swaminatha Iyer of Ilayathakudli. In the account of the election expenses the respondent has not shown any expenditure as having been incurred by him after the 3rd of March 1957.'
In paragraph 80 of his written statement the respondent denied the allegation and pleaded that no charges or expenses were incurred for travelling, batta, fees etc. for the four counting agents and therefore no question of inclusion thereof in the account of election expenses could arise. The Tribunal found that there was no evidence adduced on behalf of the petitioner to show that any expenditure was incurred by way of travelling charges batta and fees for the counting agents of the respondent as alleged.
On that finding the Tribunal should have held that the allegation was not made out but he considered that the respondent went from Kanadukathan to the place where votes were being counted in his own car and therefore, the question had to be decided whether the journey having been exclusively for the election purpose, any amount should be estimated and entered in the account for use of the car for the purpose and he held that there should be an estimate in money and the amount entered in the account, (Vide paragraph 162) but he never gave any estimate. Learned counsel for the respondent raised the same objection which he raised with reference to the instance (a).
We have no hesitation in holding that the Election Tribunal had no jurisdiction to raise this question of the expenses incurred by the respondent for going in his own car to the place of counting because all that was alleged in the instance (a) was that the respondent had not included the expenditure incurred in connection with the travelling charges, batta, etc. for his four counting agents. The next instance is (e) namely,
'The petitioner states that the Chief Minister of Madras, S. K. Kamaraj addressed a number of election meetings on behalf of the respondent one on the 3rd February 1957, at Karaikudi, and again at Karaikudi on 26th February 1957 and also at kottaiyur, Pallathur, V. Surakudi, Kunnakudi, and Kandanur on the same date. At all these places special pandals were erected for those meetings and microphone arrangements and also illuminations and decorations were provided for these pandals.
(i) The respondent has not included in his account of election expenses any expenditure in connection with the construction of pandals, arrangements of microphone, decorations and illuminations of the pandals for all these meetings which were addressed by the Chief Minister Sri K. Kamaraj and accompanied by the respondent.
(ii) The petitioner has not included the expenditure of the travelling charges of Sri. K. Kamaraj Chief Minister for Madras, in coming from Pudukottai and Karaikudi and for going to these villages for addressing these meetings in furtherance of the election of the respondent.'
(6) Paragraph 82 of the written statement deals with this:
'It is not true that at all the places where Sri K. Kamaraj addressed the meetings on 3-2-1957 and 24-2-1957 pandals were erected. In most of the places the meetings were addressed in the open and in a few places where small pandals had been erected there was neither decoration nor illumination. Charges for lighting the microphones whenever incurred by this respondent or authorised by him have been duly entered in the accounts. Arrangements for microphone were mostly made with microphone fitted in the propaganda cars and no separate expenses were incurred in connection therewith for the meetings. No travelling expenses were paid to Sri K. Kamaraj Nadar.'
The Tribunal held that there was an omission of the expenditure for one pandal in the account of the election expenses kept by the respondent. The other allegations, he held, were not proved. This omission is sought to be founded on an admission in the written statement of more than one pandal. The evidence is quite clear that the admitted pandals in the written statement had reference to two pandals one at Sanjai Puttal and the other at Manasai. The expenses in connection with the erection of the pandal at Sanjaipottal is included in the account of election expenses and there is a voucher for it. As regards the other pandal at Manasai the evidence of R. W. 1 the secretary of the respondent is that it was not set up by or on behalf of the respondent and that it was on the road margin and was erected by the villagers. This evidence remained uncontradicted. We, therefore, hold differing from the Tribunal that this instance has not been proved.
(7) The instances set out in (f) and (g) may be taken together. It is alleged that certain persons came to Karaikudi and addressed meetings for the furtherance of the respondent's election but the respondent had not included in his account of election expenses the travelling and other charges of these persons. Those persons were T. Chengalvarayan, Advocate of Madras, Dr. P. Varadarajulu Naidu of Madras, Jabamani of Madras and Vincent of Dindigul. The respondent denied that any expenses for travelling or any other expenses were incurred by him in connection with the visits of such persons.
There is no evidence let in by the petitioner in support of these charges and the Tribunal held that the charges had not been proved. Learned counsel for the petitioner sought to attack these findings but he could not succeed. We agree with the Tribunal that these charges have not been proved. Clause (j) contains the next instance namely, that the respondent had engaged several premises in various villages as detailed in schedule IV for the location of his election offices and the respondent had not included either the rent actually paid by him for these premises or a reasonable amount as consideration for the occupation of such premises during the period of his election compaign. Schedule IV gave a list of 23 villages where according to the petitioner the respondent had engaged premises for the location of his election offices. In the written statement this charge is traversed in paragraph 87 thus:
'Except for Karaikudi, no rent was paid by the respondent for the location of his election offices. Premises belonging to friends or those of the village Congress committee were used and no charges were either demanded or paid. In fact item 4 Karungulam is not within the Karaikudi Constituency at all. The allegations in paragraph 19(j) are, therefore, incorrect and misleading.'
At the trial the petitioner let in evidence that in the town of Karaikudi itself there were nine offices. The Tribunal held that the petitioner could not be allowed to adduce evidence of more than one place used as office premises in Karaikudi in the absence of specific allegations to that effect in the petitioner. He was also prepared to find that the petitioner had failed to prove that the respondent had more than one office premises in Karaikudi. There was no acceptable evidence of payment of any rent or compensation by the respondent for use and occupation of the premises in any of the villages in connection with his election work except for the premises in Alankudiar street at Karaikudi.
Nevertheless, the Tribunal held that the respondent should have included a reasonable rent for the premises, 20 in number, at the twenty places out of the 23 in schedule IV of the petition. There was no evidence about the reasonable rent of those premises as such. The Tribunal, however, went on to estimate the reasonable rent for the premises. As regards the premises at Alankudier Street, in Karaikudi the petitioner adduced the evidence of P.W. 73 that rent of Rs. 300 was fixed for the premises but his evidence was not believed by the Tribunal.
The respondent admitted that a sum of Rs. 50 was paid but this was really for sweeping and lighting charges. The respondent's contention was two-fold: (1) there was no evidence on which the Tribunal could fix reasonable rent and (2) in law the respondent was not bound to include in his account of election expenses a notional reasonable rent. We agree with him that there is no evidence and as regards the legal objection which is common to several of the charges we shall deal with it later. The next instance is that set out in clause (k) which runs as follows:
'The respondent himself filed hi nomination on 26-1-1957 at Devakottai which was the head quarters of the Returning Officer and for this purpose the respondent had to travel from Kanadukathan to Devakottai and in the account of election expenses lodged by the respondent no travelling charges of whatever description are shown as having been incurred by the respondent.'
The respondent's answer was that he went to Devakottai from Chettinad to file his nomination on 25-1-1957 in his own car that no petrol was purchased on that day for the car which had already necessary fuel, and no travelling charges of any kind were incurred by filing the nomination paper and therefore nothing could be shown in the account of election expenses. The Tribunal found that the respondent had omitted to include in his account of election expenses the expenditure incurred by him in connection with his trip from Chettinad to Devakottai to present his nomination paper on 25-1-1957.
This charge appears to border on the ridiculous. The candidate goes in his own car from his residence to the office of the Returning Officer where he has to file his nomination paper and he is charged of being guilty of a corrupt practice because he has failed to include in his return the expenses which he must be deemed to have incurred in connection with his journey for filing the nomination papers.
Obviously it could only be a rough estimate depending upon the distance, the mileage per gallon, the wear and tear which the car had sustained by the few miles journey. The petitioner himself did not give any evidence as to the probable amount of expenditure involved. Obviously the amount cannot be so much as to materially add to the expenses otherwise incurred. That such a charge should have been seriously put forward and the Tribunal should have been prepared to set aside the election of the respondent on that ground appears exceedingly surprising to us.
(8) Finally there is the instance in clause (m) which runs as follows:
'The respondent engaged polling agents in all the 109 stations in the Assembly constituency and polling agents and substitute polling agents were in fact acting for the respondent in all the polling stations. However, the respondent has included in his account of election expenses the travelling charges of only 48 polling agents and has not shown the batta charges of any of his polling agents or substitute polling agents.'
The respondent in paragraph 90 of his written statement stated that the expenses incurred by him for the polling agents had been duly entered in the accounts and it was only with regard to some polling agents who were voluntary helpers no expenses were incurred because they refused to receive anything. The Tribunal was prepared to accept the statement of the respondent that nothing was really paid to some of the polling agents but he considered nevertheless that in law the respondent was bound to include in his account of election expenses the travelling charges of 22 of his polling agents who came from Madras and Chidambaram. The reasoning of the Tribunal was this:
'The respondent gave them authority to act as his polling agents at Kanadukathan. He, therefore, accepted their trip for that purpose as having been undertaken for him.'
The fact that even though he offered to pay them they did not accept the offer shows that the expenditure incurred by them was expenditure authorised by law, and in any event, the respondent should be deemed to have ratified the expenditure.
(9) On the above finding relating to the several instances the Tribunal held that if the omitted items of expenditure were included the total would exceed the maximum prescribed. The maximum amount of expenditure fixed for this constituency was Rs. 9000. The return of elections expenses submitted by the respondent showed that he had incurred a total expenditure of Rs. 7118-2-7. For the three vans and the jeep the Tribunal adopted an estimate of Rs. 1500. For the premises of Alankudier Street he put Rs. 300 as reasonable rent and similarly for the office at two other places he fixed a rent of Rs. 100 and 30. These together would come to over Rs. 1900 whereas the margin was only Rs. 1881-13-5. Besides these three were other items of omission and if they are all taken into account there can be no doubt that the omitted items of expenditure would have the result of exceeding the maximum prescribed.
(10) Now let us recapitulate briefly the findings of fact arrived at by the Tribunal and modified by us as indicated above regarding each of the instances in so far as they are against the respondent.
(a) Three propaganda vans and a jeep van were used for the purpose of the election but they were voluntarily given for the respondent's use by their owners. No payment in money or otherwise was made by the respondent to the owners of the vehicles for such use. Money actually spent for the running of these vehicles was included in the account of election expenses.
(c) There is no proof of any expenditure having been incurred by the respondent on account of travelling charges, batta and fees for his counting agents as alleged by the petitioner. The respondent went from Kanadukathan to the place where votes were being counted in his own car.
(e) There were two pandals erected in connection with the meetings addressed by the Chief Minister of Madras but the cost of one of the pandals is not included in the account of the election expenses. This pandal was put up the villagers themselves.
(j) The petitioner has not proved payment of any rent or compensation by the respondent to the owners of the several premises used by him as election offices. Only a sum of Rs. 80 was paid to the owner of the premises in Algandiar Street in Karaikudi but this was only for expenses of sweeping and lighting.
(k) The respondent went from his residence in Chettinad to Devakottah to file his nomination papers in his own car.
(m) 22 polling agents on behalf of the respondent came from Madras and Chidambaram but the respondent did not make any payment to them.
(11) On these facts the Tribunal held that there were omissions from the respondent's account of election expenses of the following items of expenditure.
(a) The respondent ought to have included reasonable hire for the three propaganda vans which he used for over a month and one jeep van from the middle of February (Para 161).
(c) The estimated money value of the use of the car for travel on the day of counting should have been included in the account of election expenses (para 162).
(e) The cost of one pandal should have been included (Para 163).
(j) The respondent should have included in the account of election expenses reasonable rent for the premises 20 in number at the 20 places out of the 23 in schedule IV of the petition (para 164).
(k) The respondent should have included in his account of election expenses, the expenses of his travel from Kanadukathan to Devakottai for the purpose of presenting his nomination papers (para 168).
(m) The respondent should have included in his account the travelling charges of 22 of his polling agents who came from Madras and Chidambaram (para 169).
(12) The Tribunal found that there was no evidence whatever as to the amount of expenditure which should have been included under these heads.
(13) Though there was no allegation in the election petition relating to them the Tribunal found that two vouchers namely, vouchers bearing numbers 21 and 124 were not vouchers as required by law. Voucher No. 21 is a receipt obtained for payment of Rs. 50 to the owner of the premises at Alangudier Street, Karaikudi where the respondent had an election office. The recital in the receipt is that the amount paid was for rent. The actual evidence, however, was that the sum was paid not for rent because the house was given by the owner gratis but it was for lighting and sweeping charges which were met by the owner himself. Admittedly the sum of Rs. 50 is included in the account. The Tribunal found that as there was a conflict between the recital in the voucher and the evidence of P.W. 43, the voucher does not represent the true state of facts, and renders the account incorrect.
(14) The other voucher No. 124 relates to a sum of Rs. 30 which is found entered in the account against advertising charges. In the voucher the sum is stated to be for 'flas-cabinet copy'. Evidence was given by P.W. 48 that a flash photograph was taken of the procession at Sonjai puttal and copies of the photograph were sent to the villagers for the purpose of propaganda. The amount was paid to the photographic studio and the voucher evidently relates to this photograph. 'Flas' is obviously the word 'flash' misspelt but the Tribunal held that it was not a speaking voucher and therefore, not in accordance with the rules. On these findings, as to the two vouchers the Tribunal held that there was a contravention of S. 77(2) of the Act.
(15) In the first place we are of opinion that the election Tribunal had no jurisdiction to go into the question of the validity of these two vouchers in the absence of any allegation in the election petition. Even assuming we had, we do not agree with the Tribunal in his finding that these two vouchers are not in accordance with law and that, therefore, there has been a contravention of S. 77(2) of the Act. It is obvious from the evidence that the discrepancies adverted to by the Tribunal are not material. The question whether even if there is a contravention of S. 77(2) of the Act, it would amount to a corrupt practice set out in S. 123(6) of the Act will be discussed later.
(15a) We are also of opinion that the Election Tribunal had no jurisdiction to deal with the omission of two sums of five annas and eight annas alleged to have been spent in connection with the purchase of a certified copy of the electoral roll filed along with his nomination paper and the cost of court-fee label of eight annas affixed on it. There was nothing in the Election petition about these two sums. Even otherwise we do not agree with the Tribunal that these sums should have been entered in the account of expenses.
We accept the respondent's case that the certified copy of the electoral rolls was not obtained for the purpose of the election. It was actually obtained even before the notification calling for nominations. We also accept the evidence of R.W. 1 and R. W. 13 that the court-fee stamp of eight annas was not purchased by or on behalf of the respondent but was given gratis by Jayaraman, R. W. 13, a clerk of one of the respondent's advocates who had it with him.
(16) As mentioned earlier on in this judgment the Tribunal found that the respondent had contravened clauses 1, 2, 3 of S. 77 of the Act and was, therefore, guilty of the corrupt practice described in S. 123(6) of the Act. So far as S. 77 clauses (1) and (2) are concerned, the Tribunal relied on an earlier order of his in Election Petition No. 149 of 1957, referred to as 'The Krishnagiri case', in which he held that contravention of S. 77(1) and (2) would by itself amount to a corrupt practice under S. 123(6) of the Act.
Indeed he incorporated the material portion of the order in the Krishnagiri case in his order in the present case in paragraph 133. Pages 208 to 246 contain verbatim extracts from the order in the Krishnagiri case. In that case the Election Tribunal found that the returned candidate had omitted to include in his account of election expenses two items of expenditure incurred by him. On that finding the question was raised how far such omission which would no doubt be a contravention of S. 77(1) of the Act would render the returned candidate guilty of a corrupt practice set out in S. 123(6) of the Act.
Having found a contravention of S. 77(1) of the Act the Tribunal set aside the election of the returned candidate on the ground that he was guilty of a corrupt practice under S. 123(6) of the Act though he also found that there was no contravention of the provisions of S. 77(3) of the Act. This order of the Tribunal came up on appeal to this court, C. R. Narasimhan v. M. G. Natesa Chettiar, C. M. A. No. 255 of 1958: : AIR1959Mad514 . We allowed the appeal disagreeing with the view expressed by the tribunal.
We held that contravention of sub-sec. (1) of S. 77 would not by itself amount to a corrupt practice under S. 123(6) of the Act. The main ground on which we held so was that S. 123(6) spoke of incurring or authorising of expenditure whereas S. 77(1) was only concerned with keeping of an account of all the expenses. Before the Tribunal an attempt was made by the learned counsel for the respondent to persuade the tribunal to reconsider his view in the Krishnagiri case. Of course, the decision of this court in that case had not been pronounced by that time.
The Tribunal refused to take a different view. In doing so he considered certain points urged by the respondent's learned counsel none of which appealed to him. Learned counsel for the petitioner in view of our decision in the Krishnagiri case did not argue the matter but he made it clear that he was not accepting the correctness of our view. In our judgment in that case we relied on several decisions of the other High Courts. Learned counsel for the respondent has in addition to them drawn our attention to a later decision of the Allahabad High Court, Ghayar Ali Khan v. Keshav Gupta, : AIR1959All264 , in which the same view is taken.
(17) We would take this occasion to mention another ground in support of the view which we took earlier as the Tribunal has adverted to the changes made by the Amending Act of 1956. The relevant provisions in the original Act as it stood before the amendment are the following:
Section 40(1): Every person nominated as a candidate at an election shall before the delivery of his nomination paper under sub-sec. (1) of S. 33 or under that sub-section read with sub-sec. (4) of S. 39, as the case may be, appoint in writing either himself or some one other person to be his election agent.
Section 44: Every election agent shall, for such election for which he is appointed election agent, keep separate regular books of account and shall enter therein such particulars of expenditure in connection with the election as may be prescribed.
Section 76(1): Within the prescribed time after every election there shall be lodged with the Returning Officer in respect of each person who has been nominated as a candidate, a return of the election expenses of that person signed by him and his election agent.
(2) Every such return shall be in such form and shall contain such particulars as may be prescribed and shall be accompanied by declarations in the prescribed form by the candidate and his election agent made on oath or solemn affirmation before a magistrate.
Section 77: 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 such as may be prescribed.
In the original Act, there were two categories of corrupt practices namely (1) major corrupt practices and (2) minor corrupt practices. Section 123 enumerated the major corrupt practices. It is sufficient to refer to clause (7) of that section which runs thus:
'The incurring or authorising by a candidate or his agent of expenditure or the employment of any person by a candidate or his agent, n contravention of this Act or of any rule made thereunder.'
Section 124 described the minor corrupt practices of which the relevant one is that comprised in sub-sec. (4) namely,
'The making of any return of election expenses which is false in any material particular, or the making of a declaration verifying any such return.'
Apart from major and minor corrupt practices the Act mentions illegal practices also. Section 125(1) sets out one of such:
'The incurring or authorisation by any person other than a candidate or his agent of expenses on account of holding any public meeting, or upon any advertisement, circular or publication or in any other way whatsoever, for the purpose of promoting or procuring the election of the candidate, unless he is authorised in writing to do so by the candidate.
Explanation: Any such expense as aforesaid incurred or authorised by any institution or organisation for the furtherance of the prospects of the election of a candidate supported by such institution or organisation shall not be deemed to be expenses incurred or authorised within the meaning of this clause.'
(18) Section 100 gives a list of the grounds for declaring the election of a returned candidate to be void. Sub-sec. (2)(a) states that if the Tribunal is of opinion that the election of a returned candidate has been procured or induced or the result of the election has been materially affected, by any corrupt or illegal practice the Tribunal shall declare the election of the returned candidate to be void. The following rules framed under the Act before the Amendment are relevant:
Rule 111: The books of accounts to be kept by an election agent under S. 44 shall contain a statement:
(1) of all payments made or authorised by the candidate or by his election agent or made on behalf of the candidate or in his interests by any other person with the consent of the candidate or his election agent for expenses incurred on account of, or in connection with, the conduct and management of the election, and
(b) of all unpaid claims in respect of such expenses of which the candidate or his election agent is aware.
117: 'No expenses 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.
118: 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.'
(19) The Amending Act of 1956 inter alia made the following changes. It made the appointment of an election agent optional, (Sec. 23). For the original Ss. 76, 77 and 78 the present Ss. 76, 77 and 78 were substituted. Sections 124 and 125 were entirely repealed. In short the categories of minor corrupt practices and illegal practices disappeared. There was consequently amendment of S. 100. The view taken by the Tribunal implies that though the making of a return of election expenses false in any material particular is no longer a minor corrupt practice after the amendment, it has been made, as it were, a major corrupt practice by S. 123(6). We cannot agree with this inference. Though ordinarily the court should not refer to reports of select committees it may be useful on this occasion to refer to the following passage in the report of the select committee relating to these changes. The relevant passage is this:
'The committee feel that the provisions of Ss. 100, 123, 124 and 125 are rather complicated and should be simplified. The committee are of the view that illegal practices should be done away with, that the classification of corrupt practices between major and minor should be abolished, that there should be only one class of corrupt practices to be called 'corrupt practices' simpliciter and clauses 3 and 4 of the existing S. 123 should not be corrupt practices at all and that of the various items in existing S. 124, item 5 only should be regarded as a corrupt practice and items 2, 3 and 4 should not be corrupt practices at all.'
(20) This in our opinion places the matter beyond all doubt.
(21) It may be mentioned that it is not as if the provisions in Ss. 124(4) and 125(1) of the Act have disappeared altogether from the statute book. They are found substantially in Ss. 171(I) and (H) of the Indian Penal Code respectively. The tribunal has in more than one place assumed that the object and the effect of the amendment of the old Act and the old rules was to tighten the hold on the candidate but there is no warrant for this assumption.
(22) Nothing has been stated before us to make us reconsider our decision in C. M. A. No. 255 of 1958: : AIR1959Mad514 , (Krishnagiri Case). Following that decision we hold that the respondent is not guilty of any corrupt practice under S. 123(6) of the Act merely by reason of an omission to include certain items of expenditure in the account of his election expenses as required under S. 77(1) assuming that there are such items. Nor is the respondent guilty of the same corrupt practice because the two vouchers filed by him are not as required by law and therefore the respondent has contravened S. 77(2) of the Act.
(23) There remains the alleged contravention of S. 77(3). Following the principle of the decision in the Krishnagiri Case, we hold that there has been no incurring or authorising of expenditure which falls within the scope of that provision. The Tribunal has definitely found that the respondent has not actually incurred any expense in the sense that he has been out of pocket in respect of the several items on which he has found against him. Nor has the Tribunal found that the candidate had authorised any expenditure in respect of the said items.
According to the Tribunal in computing the total of the expenditure not only the expenditure incurred or authorised by the candidate but also the amounts representing free services given to him by other should be included. Though the candidate might not employ a van or any canvasser for propaganda yet if someone interested in his election does so then the candidate must be deemed to have incurred or authorised expenditure of such user or employment
This results from the logical application of the rule adopted by the Election Tribunal but this is directly opposed to the law as laid down by the Supreme Court in Rananjaya Singh v. Baijnath Singh, : [1955]1SCR671 . In that case the returned candidate was one Rananjaya Singh. He is the son of Raja Bhagvan Bux Singh. Among the grounds on which his election was sought to be set aside was that he had employed for election purposes more persons than authorised by law and that he had incurred expenditure exceeding the prescribed limit. The charge in effect was that the Manager, Assistant Manager, and 20 employees of the estate belonging to his father and their peons and orderlies had worked for the candidate. Contravention of Rr. 117 and 118 quoted earlier read with S. 77 of the Act were relied on. The Supreme Court differing from the Tribunal held that in the eye of the law the persons who were in the employment of the father of the candidate and had been paid by him were neither employed nor paid by the candidate. The case, therefore, did not fall within S. 123(7) or 124(4) of the Act. Das J. as he then was, who delivered the judgment of the court observed thus:
'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 are not obliged to do. Was the position in law at all different from the position that the father had given those employees a holiday on full pay and they voluntarily rendered assistance to the appellant in connection with this election? We think not. It is clear to me 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 respondents admits the employment of volunteers does not bring the candidate within the mischief of the definition of corrupt practice as given in S. 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 plaint language of the sections of the Act and the rules made thereunder. 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.'
The basis of the decision was that employment and payment should have been by the candidate or by his election agent. Reference was made briefly to the observations made by Phillimore J. in Joseph Forster Wilson v. Sir Christopher Furness, 6 O'Malley and Hardcastle's Report of Election Cases p. 1 at p. 6. There is also another passage in that case which is apposite. A few facts in connection with which these observations were made may be useful. Sir Christopher Furness was the returned candidate. Marmaduke Furness his son was a gentleman who had a large establishment in the county of York where he kept a great number of horses and carriages and grooms to attend to them. 'Being minded to assist his father at the election he conveyed those vehicles with the necessary horses and drivers by a special train which cost him 48 to his father's house in the neighbourhood of the boroughs. The question was whether such an expenditure was not unlawful and it was held that it was not. Phillimore J. stated thus:
'The law says that a man may lend his own carriage with the necessary horses to draw it, and the necessary driver to drive, and he may do so none the less because the coachman has standing wages, a proportion of which no doubt would be attributable to the day of the election. Of course be must take provision for feeding the horses; or if we are dealing with a motor car he must buy from time to time the necessary petrol. He may bring the horses and carriage from some distance--he may put it in repair for the purpose; he may pay for the repair for any damage which may accrue upon the way or during the day to the carriage, and he may if the horse casts a shoe. In the same way he may provide for the additional petrol. In the same way he may pay any turnpike tolls, steam ferry tolls, or bridge tolls on the road between the place from which he starts and the place where he is going to use his carriage, and upon the same principle we think he may pay for any necessary means of bringing his carriage to the place. That is to say, the lender of the carriage may do so. He must no do it with the money of the candidate, and one lender of one carriage must not pay for the conveyance of the carriage of another; but these carriages and horses were the property of Marmaduke Furness and the drivers were in his employ. He got no monetary assistance to bring them and he paid no money to other to bring theirs; and therefore, we think upon these facts, our judgment not being intended to go further than these facts, there is no complaint in this respect. It is perfectly true it is a startling thing. Particularly with the development of motor cars the whole use of carriages and vehicles at elections has become an oppressive use, largely favouring the rich, and those who are possessed of vehicles or of friends who are possessed of vehicles, at the expense of a poorer man but that is a matter for Parliament and not for us.'
In our opinion, the above decision of the Supreme Court is conclusive on the facts which arise in this case. The candidate, that is the respondent himself, did not make any payment. Nor did he incur any expenditure for the use of the vans and the jeep. Likewise he did not make any payment; nor did he incur any expenses for the occupation of the several premises for his election offices. The candidate by himself or by his agent did not make any payment to the 20 polling agents whose expenses are alleged to have been omitted.
The respondent did not pay for the erection of the pandal in the village of Manassei. So far as the personal travelling expenses of the candidate himself were concerned that is to say, the expenses incurred for going in his car to file nomination papers and also for going to the place where votes were being counted we do not think that there was any culpable omission. So far as the purchase of petrol was concerned there were vouchers in the account of petrol purchased for election purposes.
Giving notional estimate of the amount to represent wear and tear of the motor car in which the respondent made the journeys appears to us to be an extravagant demand. Assuming that such amount should be determined and included we can say that there is no evidence on the point on which the Tribunal could base a finding. In any event it appears to be obvious to us that the expenses incurred for these journeys cannot have substantially added to the amount already returned so as to lead to the exceeding of the maximum amount prescribed.
(24) Learned counsel for the respondent contended that an election cannot be set aside on charges not made in the election petition, and particulars not furnished, by the petitioner and on evidence not adduced. The petitioner, except in the case of journeys made by the respondent to the place where he had to file his nomination paper and to the place where votes were counted, definitely alleged that the respondent had paid moneys for the use of the vans and the jeep, for the premises used as election offices and to the polling agents as travelling expenses.
It was not the petitioner's case, even as an alternative, that though there was no payment by the respondent, nevertheless a notional estimate should be made of what he might reasonably have paid and the amount so estimated should be included in the election expenses and that if so included the total would exceed the maximum prescribed. No particulars were given in the petition and no evidence adduced as to the reasonable amount which may be so added to the amount already shown in the respondent's return of election expenses.
In more than one place the Tribunal specifically states that the petitioner did not lead any evidence on those matters. The conclusion of the Tribunal is, therefore, based on his conjecture but judicial conjecture cannot take the place of legal evidence. So his argument ran. We see considerable force in this argument. An election enquiry as has often been pointed out, it in the nature of a quasi criminal trial and the election petitioner is virtually in the position of a prosecutor.
It is an elementary rule of law that the prosecution should make out its case by positive proof and not by mere conjecture. Nor can the prosecution succeed on an alternative case not put forward. Learned counsel for the respondent also made an attempt to show that even assuming that a conjectural estimate can be made of the expenses which the respondent notionaly should be deemed to have incurred in respect of the several items found by the Tribunal the total f such expenses would not exceed the prescribed maximum. But then we will be falling into the same error as the Tribunal did in basing our decision of conjecture.
(25) Likewise we are not inclined to rest our decision on the fact that three vans and a jeep were used not only for the purpose of the election campaign of the respondent but also for that of his natural brother Ramanathan Chettiar who was a candidate for the Karaikudi Parliamentary Constituency and that the polling agents of the respondent were also employed as agents for Ramanathan Chettiar. The contention on behalf of the respondent was that the amount debited against the respondent for the use of the vans and the jeep namely, Rs. 1575 should be halved and that would make a difference in the total of the expenditure As already stated we would again be entering into the region of conjecture.
(26) On the construction of S. 123(6) of the Act, learned counsel for the respondent strongly relied on the decision of the Supreme Court in : [1955]1SCR671 , as authority for the position that a candidate cannot be held guilty of having contravened S. 77(3) of the Act by debiting him with expenses not incurred or authorised by him but incurred by other persons. He also referred us to the decision of the Rajasthan High Court in Sheopatsingh v. Harishchandra, .
(27) The position which arises in this case arose in that case also namely, assuming that a vehicle is lent gratuitously to a candidate whether a reasonable hire for the vehicle should be shown as election expenses, that is to say, as expenditure which the candidate should be presumed to have incurred or authorised. The learned Judges, Wanchoo C. J. and Jagat Narayan J. held that it was not. They said 'One incurs expenditure when one actually spends money. One authorises expenditure when one incurs a pecuniary liability.'
An argument that if this construction is adopted, candidates who have friends and relations would have unfair advantage over a poor rival was repelled on the authority of the decision of the Supreme Court in : [1955]1SCR671 . It was held that reasonable hire for the vehicles lent by the candidate's friends gratuitously cannot be added to the election expenditure of the candidate.
(28) We shall leave open the question what would be the legal effect if the candidate's friends who lent the vehicles had themselves hired them and incurred expenditure because that question does not arise on the facts of the present case as it was not suggested anywhere that the vans and the jeep were hired by the persons who lent them to the respondent. What we have said will apply also to the premises used as election offices.
(29) Learned counsel for the petitioner contended that the amendment in 1956 did not materially alter the ingredients of the corrupt practice now set out in S. 123(6) and formerly in S. 123(7) and that the repeal of S. 125 by itself has no material bearing on the provisions contained in S. 77(3) that the maximum prescribed should not be exceeded. We agree but we are unable to see what follows. So far as S. 77(3) is concerned, our decision as to its interpretation is not based on any of the amendments in 1956.
It is really based on the decision of the Supreme Court which laid down that it is only the expenditure by the candidate (or his election agent) that should be taken into account for the purpose of S.. 77(3) (old S. 77 read with rules 117 and 118) and not by any other persons. In view of this authoritative pronouncement of the Supreme Court, it is really unnecessary to refer to certain English decisions which were relied on by the respondents' counsel and by the Tribunal as well. But as considerable time was spent on the English law we shall refer to the decisions cited and relevant statutory provisions.
(30) Certain observations of Mr. Justice Channel in the Cockermouth Division of the County of Cumberland case, 5 O'Molley and Hardcastle's Election Petitions, 156 at p. 158, were relied on. The facts were that a tea meeting provided by the Liberal Unionist Association took place the expenses of which were defrayed by that Association and such expenses were not included by the candidate in his return of expenses The charge was that this amounted to an illegal practice under Ss. 28 and 33 of 46 and 47 Victoria Chapter 51. Section 28 provided:
'No payment and no advance or deposit shall be made by a candidate at an election or by an agent on behalf of the candidate or by any other person at any time whether before, during or after such election in respect of any expenses incurred on account of or in respect of the conduct or management of such election, otherwise than by or through the election agent of the candidate whether acting in person or by a sub-agent; and all money provided by any person other than the candidate for any expenses incurred on account of or in respect of the conduct or management of the election whether as gift, loan advance or deposit, shall be paid to the candidate or his election agent and not otherwise;'
Section 33 dealt with the return of election expenses which should contain inter alia a statement of all money, securities and equivalent of money received by the election agent or from the candidate or any other person for the purpose of expenses incurred or to be incurred on account of or in respect of the conduct or management of the election with a statement of the name of every person from whom the same may have been received. Mr. Justice Darling held on the facts that the expenses of the tea were not incurred in respect of the conduct or management of the election and that it was not arranged for the candidate's election and that the candidate had nothing to do with the getting up of it, and that he did not contribute in any shape or form to the expenses and that the candidate was, therefore, not guilty of an offence under the above sections of the statute. The learned Judge also held that the expenses of the meeting were properly not included in the candidate's election expenses. Mr. Justice Channell who concurred in the conclusion of Mr. Justice Darling made the following observations:
'The difference between an act done for the conduct and management of the election and a thing done merely for the promotion of the success of a particular candidate seems to me to be this: If another person pays an expense and that expense is one of the ordinary expenses of the candidate, so that the doing of that by that third person relieves the candidate from part of his election expenses, then the candidate must treat that assistance as given to him in respect of his election expenses, and must treat the expenses as part of his expenses. It is just the same as if the Carlton Club, or anybody else in London had contributed .100 towards Mr. Randle's expenses, it must be included, and if a person instead of giving money gives a particular portion of the election expenses by providing the expenses of a meeting or doing something or other of that sort, then he does something in reference to 'the conduct and management of the election', but if he, being merely a person interested for some reason, as a Liberal-Unionist, or any other reason in the success of a particular candidate, chooses to do things on his own account, which do not go to relieve the candidate from any portion of his election expenses, that is not doing anything in reference to 'the conduct or management of the election'; and it would be perfectly impossible for elections to be conducted if it was so.'
These observations besides being obiter are in our opinion of no assistance in construing S. 123(6) read with S. 77(3) of the Act. Under the English statute even monies contributed by a third person to the candidate for his election expenses must be included in the return of election expenses. There is no such provision in the Indian Act or in the rules, now in force. There is also the fact that in the present case no person has made any payment or incurred any expenses.
They have either placed their vehicles or premises at the disposal of the respondent freely for his election purposes or have voluntarily acted as polling agents without receiving any remuneration. There is no question of any incurring of expenditure even by a third person.
(31) In the same volume (Volume 5 O'Malley and Hardcastle) there is another case from which passages at pages 114 and 115 were lied on but on the facts, those observations have no bearing on the facts of the present case. There, the candidate had built a room which he had furnished as a club room and he had allowed the Radical Association to use it as a club for its meetings. During the election it was used as a committee room.
The candidate had paid all the expenses in connection with that room namely, rent, taxes and the keep up of the place but did not include any of them in his return of election expenses. Baron Pollock held that such expenses must have been included. He observed.
'When an election is taking place there must be a committee-room somewhere, and that committee-room must be hired unless the candidate carries it on in his own house and there must be the expenses of the rent, coal, gas, cleaning and so forth; and, but for this club-room,. they must have gone elsewhere; it was found more convenient to have this club-room; but the people who inhabited it were the people who were workers for the election; therefore, it seems to me that these were election expenses.'
The noble Baron also expressed the definite opinion that if a portion of his own house had been set apart and used as a committee-room then the candidate was not bound to include a portion of the rent and other expenditure in his election expenses. He said at page 115:
'If a gentleman, instead of hiring a committee-room elsewhere, likes to devote a certain portion of his own house, a room or two rooms, for the purpose of a committee-room, are you immediately to say he ought to return a portion of his rent, a portion of his servant's labour and a portion of his expenditure for coal, gas etc., as being an election expenses?' I should say, certainly not, the answer being that whether an election was pending or not the room was one which he himself and his family would have inhabited. There was the firing, there was the gas that must have been used either way and I think it would be a forced construction to say that a proportion of all these expenses became election expenses.'
In the case before us there is no such expense incurred by the respondent as was incurred by the candidate in that case.
(32) In the Barwick-Upon-Twood case in Vol. 7, O'Malley and Hardcastle one of the items of expenses which the returned candidate was alleged to have omitted from the return of election expenses was the amount of rent paid by him for hiring a committee-room. It was expressly found there that the candidate had paid for the rent of the room though the room had originally been taken on behalf of the Coalition Liberal Association, Sankey J. held:
'Holding as I do that the Coalition Liberal Association were in fact acting as the respondent's agents, and that in fact these sums were paid out of the No. 2 account financed by the respondent, they were, in my view, election expenses.'
This decision has no application to the facts of the present case. The other case in the same volume viz., the Borough of Oxford Case, contains observations which prima facie appear to support the contention on behalf of the petitioner. They occur at page 76. There, three committee-rooms were taken or used and they were not paid for, but they were allowed to be used voluntarily.
After citing the passage quoted above, from V. O'Malley and Hardcastle, p. 115, about committee rooms, the learned Judge, Sankey J. set the argument on behalf of the candidate that the election expenses were not incurred by the candidate, because the rooms had been placed at the disposal of the candidate gratis thus:
'He (learned counsel for the candidate) argued that the court must be satisfied that the candidate would have been obliged to provide the committee room at some expense if he had not had the room which was placed at his disposal gratis. I am rather disposed to think, without deciding it, that that may be the true test; at any rate, I accept it for the purposes of this case; but the fact that Mr. Gray used the room, and the way in which he used it, are cogent evidence to show that it was necessary for his purpose, and that if he had not had it he would have had to provide for it by hiring rooms............................ I think the sums should be added, but the amount is a trifling one and I fix it at . 2.'
In our opinion these observations should not be taken as authority for the position that under the Indian Law whenever any vehicle or building is placed at the disposal of a candidate gratuitously by the owner of such vehicle or building a notional amount representing reasonable rent or hiring charges should be included in the return of election expenses. The observations must be read with other facts and circumstances of the case and the provisions of English electoral law. From the other portions of the report, it appears as if that conclusion was based on the circumstances of the case. At page 62 we find
'It was clearly held that in the case of a committee-room lent 'in those circumstances' the expenses ought to be returned.'
In respect of one of the committee-room we have an indication of the circumstances. The committee-room at the Reform Club was lent to the Oxford Liberal Association and it appeared that the association was practically identical with the candidate. A rent of . 25 was being paid for that room. It was contended by counsel for the election petitioner that if the respondent (returned candidate) was really the association and had provided its funds, he was in effect paying the rent of the room. Certain witnesses gave evidence in regard to these committee-rooms and payment of rent for the rooms but we have no information as to their evidence.
(33) Reference may also be made now to certain provisions of the Corrupt and Illegal Practices Prevention Act, 1883 (46 and 47 Vict. Ch 51) as the case was decided which is the provision fixing the maximum for election expenses on the provisions of this Act. Section 8(1) of the Act ran as follows:
'Subject to such exceptions as may be allowed in pursuance of the Act, no sum shall be paid and no expenses shall be incurred by a candidate, at an election or his election agent, whether before during, or after an election on account of or in respect of the conduct or management of such election, in excess of any maximum amount in that behalf specified in the First Schedule to this Act. Section 8(2): Any candidate or election agent who knowingly acts in contravention of this section shall be guilty of an illegal practice.''
(33a) Section 28(1) provided:
'Except as permitted by or in pursuance of this Act, no payment and no advance or deposit shall be made by a candidate at an election or by any agent on behalf of the candidate or by any other person at any time, whether before, during or after such election, in respect of any expenses incurred on account of or in respect of the conduct or management of such election, otherwise than by or through the election agent of the candidate, whether acting in person or by a sub-agent, and all money provided by any person other than the candidate for any expenses incurred on account of or in respect of the conduct or management of the election, whether as gift, loan, advance or deposit, shall be paid to the candidate or his election agent and not otherwise.'
(34) In the return of election expenses must be included a statement of all money, securities and equivalent of money received by the election agent from the candidate or any other person for the purpose of expenses incurred or to be incurred on account of or in respect of the conduct or management of the election, with a statement of the name of every person from whom the same may have been received. (Vide Sec. 33(1)(f)). Section 64 defines 'payment' as including any pecuniary or other reward and the expressions.
'pecuniary reward and money' shall be deemed to include any office, place or employment and any valuable security or other equivalent for money and any valuable consideration and expressions referring to money shall be construed accordingly.'
(35) On these provisions when once it is found that the expenses of hiring a place as committee-room are expenses incurred on account of or in respect of the conduct or management of the election, they must be included in the return of election expenses even though such expenses were met by a person other than the candidate because such expenses must be deemed to have been paid to the election agent. Hence it has been held that if a political or non-political association or a private individual makes a present of election literature printed at his own cost to a candidate or his election agent for circulation among the electors and if the candidate or his election agent accepted such a gift it must be returned in the election accounts. A gift in kind being equivalent to a gift in money contributions towards election expenses must be returned as well as expenses incurred. Vide Parkar's Election Agent and Returning Officer, 5th Edn. Page 117.
(36) Under the provisions of the Indian Act as authoritatively interpreted by the Supreme Court it is only the expenses incurred or authorised by the candidate (or by his election agent) that should be included in the return of election expenses and there is no provision which makes it incumbent on the candidate or his election agent to include therein expenses incurred by other persons. In the present case even this factor is absent, namely, the incurring of expenditure by any other person because the finding is that the vehicles and premises belonged to the persons who had lent the respondent their use gratuitously.
(37) We shall now sum up our conclusions: It has not been proved that the respondent has omitted any items of expenditure incurred or authorised by him and which should have been included in the account of election expenses filed by him. Even if it can be held that he omitted any such items such omission by itself will not constitute a corrupt practice mentioned in S. 123(6) read with S. 77(1) of the Act. It has not been proved that S. 77(2) of the Act has in any way been contravened.
Even if there is such a contravention that by itself would not constitute a corrupt practice under S. 123(6) as no item of expenditure which should have been included has been omitted. The total amount of election expenses incurred or authorised by the respondent has not exceeded the maximum prescribed. Assuming that any of the items found by the Tribunal should have been included in the return of the election expenses there is no evidence on record to determine the amount which should be included.
There is no specific plea in the election petition that the respondent should be debited with moneys not spent or authorised to be spent by him but which nevertheless should be notionally deemed to have been expended by him. The respondent is not guilty of any corrupt practice under S. 123(6) read with S. 77(3) of the Act.
(38) Learned counsel for the petitioner challenged the finding of the Tribunal which was against him relating to the charge contained in paragraph 18 of the petition which falls under S. 123(4) of the Act which runs thus:
'The publication by a candidate or his agent or by any other person of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, or retirement from contest of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.'
The facts on which this charge is founded are these: Paragraph 18: The petitioner states that on 22-2-1957 at S. R. Patnam the respondent through his election worker and the then sitting member of the Assembly from the Karaikudi Constituency Sri A. R. A. R. M. Chockalingam Chettiar spoke and published at a public meeting held at the said S. K. Patnam village as follows:
'Sri Sa. Ganesan (petitioner) another candidate seeking election in this Constituency had swindled the money collected for the Kamban Vizha at Karaikudi and he did not give any account.'
In paragraph 76 of his written statement, the respondent denied the allegation in paragraph 18 of the petition and stated that he had no knowledge of any such meeting as was referred to in that paragraph and that he did not speak or publish any such thing as alleged through Chockalingam Chettiar. The Tribunal found that no proof was attempted by the petitioner as regards Chockalingam Chettiar being made a medium for the utterance of the words attributed to the respondent.
In the absence of such proof the charge was not proved. Learned counsel for the petitioner took us through documentary and oral evidence to show that Chockalingam Chettiar must have made such a statement as was attributed to him in paragraph 18 of the petition. We shall assume that he did but we agree with the tribunal;
'In the absence of evidence linking up the respondent with the utterance, it must be held that no charge has been made out against the respondent.'
No doubt under S. 123(4) the publication of a false statement made by any person other than the candidate or his agent is a corrupt practice but under S. 100(1)(b) it is necessary that the corrupt practice should have been committed by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. Learned counsel for the petitioner was unable to draw our attention to any evidence to prove such consent. He confessed that the only proof of consent is the close relationship which existed between the respondent and Chockalingam Chettiar, R. W. 43, and the prominent part that he played in the election campaign of the respondent. This, by itself, obviously cannot warrant a finding of consent.
The respondent have evidence on oath denying that he ever authorised Chockalingam Chettiar to address meetings or to attach the character of the petitioner, and he was not even cross-examined on the point. We, therefore, agree with the finding of the Tribunal that the charge laid against him in paragraph 18 of the petition has not been proved and the respondent is not guilty of the corrupt practice mentioned in S. 123(4) of the Act.
(39) In view of the above conclusions, namely, that the respondent was not guilty of any of the corrupt practices alleged against him in the petition it follows that his election cannot be declared void. The Tribunal has also found that the respondent was not disqualified from standing for election and that finding has not been challenged before us.
(40) In the result, the appeal is allowed and the order of the Tribunal declaring the election of the respondent void is hereby set aside and the election petition filed by the petitioner (respondent before us) is dismissed.
(41) There will be no order as to costs.
(42) We received considerable assistance from learned counsel Mr. M. K. Nambiar and Mr. Mohan Kumaramangalam who ably argued the case for the appellant and the respondent before us, respectively.
(43) Appeal allowed.