S.Khader Sheriff vs Munnuswami Gounder And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 26 of 1955

Decision Date: 15 September 1955

Coram: T.L. Venkatarama Ayyar

In this case the petitioner, S Khader Sheriff, contested an election as a candidate of the Congress party and was declared the winner. On 12 September 1951 he submitted an application to the Tamil Nadu Congress Committee seeking the party’s nomination, expressly stating his desire to contest as a Congress candidate in the forthcoming election. He attached a payment of five hundred rupees, of which one hundred rupees was a membership subscription and four hundred rupees was a deposit that would be refunded if his application had been rejected. Subsequently, on 23 September 1951 he made an additional payment of five hundred rupees as a donation to the District Congress Committee. The Congress party formally adopted him as its candidate on 13 November 1951 and he filed his nomination paper on 16 November 1951. The election petition filed against him alleged that he had omitted these two payments from his return of election expenses, and that including them would have caused the total expenses for the constituency to exceed the limit prescribed by law. The election Tribunal examined the matter, concluded that both payments were made for the purpose of the election, found that the total expenses surpassed the legal maximum, and consequently held that section 123(7) of the Representation of the People Act had been violated. Acting under section 100(2)(b) of the same Act, the Tribunal declared the election void and also recorded a finding that the petitioner was liable to the disqualifications enumerated in section 140, clauses (1)(a) and (2) of the Act.

The Supreme Court, sitting with Justices Aiyyar, T L Venkatarama, Das and Sudhi Ranjan, affirmed the Tribunal’s decision. The Court explained that the precise moment at which a person becomes a “candidate” within the meaning of section 79(b) of the Representation of the People Act is the point at which, with the election anticipated, he himself decides to stand as a candidate and communicates that decision to others in a manner that leaves no doubt about his intention. This decision must arise from his own volition and not merely from the endorsement of any party or body. Referring to the Lichfield case of 1895, the Court held that the petitioner became a candidate from the date of his application to the Tamil Nadu Congress Committee, and that the two sums he paid were election expenses that should have been disclosed in his return. The Court further observed that the question of when candidature commences is a factual issue to be decided by the Tribunal, and that such a determination is not subject to review by the Supreme Court.

In this appeal the Court examined whether a sum paid at or immediately before an election could be characterized as a donation, a charitable act, or an election expense. The determination depended on whether the payment was made with the intention of influencing voters to support the donor, and the Court held that this issue was a factual question for the Election Tribunal to resolve. The Court referred to the authorities in the Wigan case, [1881] 4 O’M.& H. 1, and the Kingston case, [1911] 6 O’M.& H. 274, while finding the Kennington case, [1886] 4 O’M.& H. 93, to be inapplicable to the present facts. The Court further observed that the Tribunal was not required to serve a notice under the proviso to section 99 of the Representation of the People Act on the appellant, who was a party to the election petition, in order to record his liability for disqualification under section 140 of the same Act with respect to the charge that had been levelled against him. The judgment was issued by the Civil Appellate Jurisdiction in Civil Appeal No. 26 of 1955, filed under Article 136 of the Constitution of India, and it appealed the order dated 28 February 1953 of the Election Tribunal, Vellore, in Election Petition No. 84 of 1954. Counsel for the appellant and for respondent No. 1 were instructed, and the judgment was delivered on 15 September 1955 by Justice Venkatarama Ayyar. The appeal challenged the Tribunal’s declaration that the appellant’s election to the Legislative Assembly was void on the ground of a breach of section 123(7) of the Representation of the People Act No. XLIII of 1951, which defines a major corrupt practice as the incurring or authorising of expenditure contrary to the Act or its rules. Rule 117 limits the amount a candidate or election agent may incur in a single constituency, and Schedule V sets the maximum permissible expense for a single-member constituency such as Ranipet at Rs 8,000. The appellant’s expense return showed a total expenditure of Rs 7,063, which was within the statutory limit. The petition alleged that the appellant had omitted two payments of Rs 500 each from his return, and that inclusion of these amounts would have exceeded the maximum allowed. The Tribunal found that the appellant had become subject to the disqualifications prescribed in section 140, sub-clauses (1)(a).

In this matter the appellant, together with his application to contest the election, paid a sum of five hundred rupees. Of that amount one hundred rupees represented a subscription for membership and four hundred rupees constituted a deposit that, under the applicable rules, was to be returned only if the applicant was not adopted as the candidate; no refund was due otherwise. The appellant was indeed adopted as the Congress candidate and subsequently contested and won the election on that party’s ticket. A second payment of five hundred rupees was made on 23-9-1951 to the North Arcot District Congress Committee, which exercised authority over the Ranipet constituency. The Tribunal held that both of these payments were made for election purposes and therefore should have been disclosed in the appellant’s expense return. The Tribunal further concluded that inclusion of these amounts would have caused the total expenditure to exceed the maximum limit prescribed by Schedule V, that this circumstance amounted to a contravention of section 123(7) of Act No. XLIII of 1951, and that, on that basis, the election was to be declared void under section 100(2)(b) of the Act. The appellant disputed the correctness of that order. In addition, the Tribunal recorded a finding that the appellant had become subject to the disqualifications specified in section 140, sub-clauses (1)(a) and (2). The appellant challenged this finding on the ground that it was made without giving him the notice required by the proviso to section 99. The appeal raised two questions for determination. First, whether, on the facts found, there was a violation of section 123(7) of Act No. XLIII of 1951. Second, whether the finding of disqualification under section 140 was invalid because the requisite notice under the proviso to section 99 had not been served. Regarding the first question, the appellant contended that section 123(7) and Rule 117 refer only to expenses incurred by a candidate or his election agent. He maintained that he was formally nominated as a candidate only on 16-11-1951 and that the payment of five hundred rupees made on 12-9-1951 occurred well before the filing of his nomination papers, and therefore the provisions should not apply. This argument raised the issue of when the appellant became a “candidate” for the purposes of section 123(7). Section 79(b) of Act No. XLIII of 1951 defines “candidate” as follows: “Candidate means a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate.” Applying this definition, which governs the interpretation of section 123(7), any election-related expense incurred from the moment the individual holds himself out as a prospective candidate—not merely from the date of formal nomination—must be taken into account under Rule 117 read with Schedule V. It was clear that the election was in prospect at the time the five hundred rupee payment was made, as shown by the very application dated 12-9-1951 in which the appellant expressed his desire to contest as a Congress candidate in the forthcoming election.

In this case, the appellant filed an application dated 12-9-1951 in which he expressly stated that he desired “to contest as a Congress candidate in the forthcoming election.” That statement was not contested by the appellant. The appellant’s position, however, was that although the election was already in prospect, he did not become a prospective candidate at the time of making the application; instead, he argued that he only became a prospective candidate when the Congress formally adopted him as its candidate on 13-11-1951. It was submitted that the Congress Committee retained the discretion either to adopt him or to reject him, and that if the Committee chose not to adopt him, he would be unable, under the rules to which he had subscribed, to stand for election at all. Consequently, until the Committee actually adopted him, his candidature, the argument went, remained vague and uncertain, and the application of 12-9-1951 was merely a preliminary step that facilitated his later emergence as a prospective candidate. The Court observed that the moment at which a person becomes a candidate must be determined by the language of section 79(b) of the Act. That provision provides that the candidature commences when the person begins to hold himself out as a prospective candidate. Hence, the decisive factor is the candidate’s own decision, not the act of any other person or body adopting him as their candidate. Referring to the authority in The Lichfield case (1) at page 36, Baron Pollock observed: “I think the proper mode of judging a question of this kind is to take it from the point of view of the candidate himself. Every man must judge when he will throw himself into the arena. But it is his own choice when he throws down the glove and commences his candidature.” Accordingly, when a question arises under section 79(b) as to whether a person had become a candidate at a particular time, the enquiry must focus on whether, at that time, he had clearly and unambiguously declared his intention to stand as a candidate, such that it could be said he was holding himself out as a prospective candidate. Simply forming an intention to stand for election is insufficient; the candidate must outwardly manifest that intention by a declaration or conduct from which it can be inferred that he intends to stand. The Court therefore asked whether the appellant, by paying Rs 500 to the Tamil Nadu Congress Committee, merely evinced an intention to stand, or whether he actually held himself out as a prospective candidate. The application contained a clear declaration of his intention to contest the election, and that declaration was reinforced by the solemn act of paying Rs 500. By these actions, the appellant had unmistakably communicated his intention to the Committee, and thus, within the meaning of section 79(b), he became a prospective candidate.

The Court observed that the mere possibility that the Congress might ultimately refuse to adopt the appellant as its candidate does not, as has already been indicated, alter his legal position, because the relevant statutory provision looks solely at the candidate’s own volition and conduct. It acknowledged that, in the event the Congress chose not to adopt him, the appellant could be unable to contest the election; however, such an eventuality is inherent in the very concept of a prospective candidate and does not prevent his status from arising on the date of his application. The appellant further argued that his declaration of intention had been addressed not to the electorate of the North Arcot District but to the Central Committee in Madras, and that, absent proof of a public holding-out to the voters, the requirements of section 79(b) were not satisfied. The Court replied that although the holding-out contemplated by the section may be directed toward the constituency, the Central Committee itself is the body empowered to decide which individual will be adopted for election from that constituency; consequently, any declaration made to the Committee is, in effect, a communication to the constituency through its duly authorized representative.

The Court reiterated that the question of when a candidature commences is, as repeatedly held, a matter of fact, and that a decision of the Tribunal on that factual issue is not open to review by this Court on a special appeal. In the present matter, the Tribunal, after a careful and well-reasoned judgment, formulated the appropriate principles for determining the commencement of a candidature, applied those principles to the evidence, and concluded that the appellant became a prospective candidate when he paid Rs 500 on 12-September-1951. The Court found no reason to depart from that finding. The discussion then turned to a second payment of Rs 500 made to the North Arcot District Congress Committee on 23-September-1951. Counsel for the appellant, Mr Chatterjee, contended that, unlike the earlier payment, this later payment was not an election expense but a philanthropic donation to the Committee.

The Court noted that while charitable contributions are commendable, a donation made at or near the time of an election may be suspected of being intended to influence voters in favor of a particular candidate and therefore may be treated as an election expense. Referring to the judgment in The Wigan Case, the Court quoted Bowen, J.: “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.” The Court also cited The Kingston Case, quoting Ridley, J., to underscore the principle that the motive behind a donation made on the eve of an election is a factual issue requiring examination.

The judgment quoted a statement that 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.” The court then said that it must be decided as a question of fact whether the payment of five hundred rupees made by the appellant on 23-9-1951 was a pure charitable act or an expense incurred for electoral purposes. The Secretary of the North Arcot District Congress Committee admitted that it was usual for the Tamil Nad Congress Committee to consult the local committee when selecting candidates, and that at the time the payment was made the committee knew the appellant had applied for adoption by the Congress. Exhibit A(7) (1) 4 O.M. & H. 1, (2) 6 O'M. & H. 374, 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 began with an opening balance of seven rupees, twelve annas and two paise, and that various sums were collected, including the five hundred rupees paid by the appellant, which were subsequently utilised for election expenses. After considering these facts, the Tribunal held that the payment could not be regarded as innocent and was not motivated by a desire to obtain the recommendations of the North Arcot District Congress Committee for the candidature of the first respondent. No evidence was presented to justify departing from this conclusion.

Subsequently, the appellant contended that the two payments dated 12-9-1951 and 23-9-1951 could not be described as expenses incurred on account of the conduct and management of an election, relying on the decision in The Kennington Case, where it was held that payments made for the running of a newspaper started to support a candidate were not expenses incurred in the conduct and management of an election. The court observed that the facts of the present case bore no resemblance to those in that case, and it cited the comment in Parker’s Election Agent and Returning Officer, Fifth Edition, page 241, which states, “But this decision could not be safely followed except where the facts are precisely similar.” Based on the findings recorded, the appellant’s expenses amounted to eight thousand sixty-three rupees, constituting a corrupt practice under section 123(7). Consequently, the election was properly set aside under section 100(2)(b) of Act No. XLIII of 1951. The appellant further argued that the Tribunal erred in recording a finding that, because of the contravention of section 123(7), the appellant became subject to the disqualification specified in section 140, without giving the required notice as mandated by the proviso to section 1. The court noted that the question of whether a party to an election petition is entitled to such notice was to be considered subsequently.

The Court examined the question of whether a party to an election petition must be served with the notice contemplated in the proviso of section 99(1)(a) when the same charge had already been the subject of the petition itself. The Court referred to its earlier decision in Civil Appeal No. 21 of 1955. In that decision the Court had ruled that where the party had been given a full opportunity to address the charge during the hearing of the petition, a further notice under the proviso was not required for the same matter. Applying that principle to the present appeal, the Court observed that the finding recorded under section 99(1)(a) concerned exactly the payments that had been examined in the election petition. Because the appellant had already had the chance to meet that charge, the Court held that the requirement to issue another notice under the proviso did not arise. Consequently, the appellant’s objection that a notice should have been served was rejected. The Court therefore concluded that the appeal could not succeed and ordered its dismissal. The respondent, through his counsel, indicated that he would not challenge the dismissal. As a result, the Court decided that no order regarding costs would be made. The appeal was dismissed.