VIDYA SAGAR JOSID v. SURINDER NATH GAUTAM

of the Representation of People Act, 1951 and therefore commit- A ted corrupt practice under section J 23 ( 6) of the Act. The elec- tion petitioner therefore asked that his election be declared void. the election was There were other grounds also on which challenged, but we need not refer to them since no point has been made before us. The main item on which the expenses were said to be false was a deposit of Rs. 500/- as security and Rs. 200/- as applica- tion fee which the returned candidate had made with the Congress party on or before January 2, 1967. The fee was not returnable, but as this payment was made before the notification calling upon the voters to elect a member to the Assembly nothing turns upon it. The returned candidate was denied the Congress ticket on or about January 10, 1967. This was also before the said notifica tion. According to the rules of the Congress party the security deposit was refundable to a candidate if he or she was not selected. It was however provided in the same rules that if the candidate contested the election against the official Congress candidate, the security deposit would be forfeited. The returned candidate chose to stand as ain independent candidate against the official Congress nominee and incurred the penalty of forfeiture. This was after the date for the filing of the nomination paper (January 20, 1967). He had time till January 23, 1967 to withdraw If he had done so the deposit would have pre from the contest. sumably been returned to him. As he became a ·contesting can didate the forfeiture of the deposit became a fact. The case of the election petitioner was that if this deposit were added to the election expenses, the limit of Rs. 2,000/- was exceeded and therefore this amounted to a corrupt practice under section 123(6) read withs. 77(3) of the Representation of People Act. The High Court held in favour of the election petitioner and hence the appeal. Section 77 of the Representation of People Act provides as follows : Section 77. Account of election expenses and maxi mum thereof- ( 1) Every candidate at an election shall either by himself or by his election agent, keep a separate and correct acconnt of all expenditure in connection with the election incurred or authorised by him or by his elec tion agent between the date of publication of the notifi cation 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 prescnbed, ' • • B c D E F G H - .. A B c • D • _) E I • G H V!DYA SAGAR v. SURINDER NATH (Hida:yatullah, C.J.) 87 (3) The total of the said expenditure shall not ex ceed such amount as may be prescribed. this case The third sub-section creates a bar against expenditure in ex In the prescribed cess of the prescribed amount. amount was Rs. 2,000/-. Section 123(6) provides that "the incurring or authorising of expenditure in contravention of section 77 is a corrupt practice." Therefore, if the amount of Rs. 500/ was added to the election expenses as declared by the returned candidate he would be guilty of a corrupt practice, under the two sections quoted above. The question, therefore, is whether this. amount can be regarded as an election expense. The first sub-section of s. 77 discloses what the candidate has to declare as part of his election expenses. It speaks of "all ex penditure 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." In the present case, therefore, the critical dates were January 13, 1967 and February 22, 1967. The amount in question was paid before the first date. It was liable for confiscation not on the date on which the Congress ticket was refused to the returned candidate but on January 23, 1967 when he did not withdraw from the contest and offered him self as a contesting candidate against the official Congress candi In other words, the payment was made before the period date. marked out by s. 77 ( 1) but the expenditure became a fact between the two dates. The contention of the returned candidate was that this was not an expenditure within the meaning of s. 77 (I) of the Representation of People Act and this is the short question which falls for consideration in the present case. Section 77 as framed now departs in language from the earlier provision on the subject which was rule 117. It read: "117. Maximum election expenses-No expense shall be incurred or authorised by a candidate or his election agent on account of or in respect of the conduct and management of an election in any one constituency in a State in excess of the maximum amount specified in respect of that constituency in Schedule V." The words "conduct and management of election" are not as wide as the words "a]J expenditure in connection with election incurred or authorised by him, "which now find place in s. 77". The ques tion thus is what meaning must be given to the words used in s. 77. The critical words of s. 77 are 'expenditure' 'in connection with election' and 'incurred or authorized'. 'Expenditure' means the amount expended and 'expended' means to pay away, lay out or It really represents money out of pocket, a going out. spend. ·ss SUPREME COURT REPORTS [1969] 2 S.C.R. Now the amount paid away or paid out need not be al! money which a man spends on himself during tbis time. It is money 'in connection with' his election. These words mean not so much as 'consequent upon' as 'having to do with'. All money laid out and having to do with the election is contemplated. But here again money which is liable to be refunded note of. The word 'incurred' shows a finality. It has the sense of rendering oneself liable for the amount. Therefore the section regards everything for which the candidate has rendered himself liable and of which he is out of pocket in connection with his election that is to say having to do with his election. is not to be If he had got The candidate here put out this money for his election since he was trying to obtain a congress ticket. ticket and the money was refonded to him, this would not have counted as an expenditure since the expense would not have been incurred. When the candidate knowing that the money would be lost went on to stand as an independent candidate, he was willing to let the money go and take a chance independently. The case ·of the appellant is that this money was not used in furthering the prospect of his election. On the other hand, it was in fact used against him by the Congress Party as he was opposed to that party's candidate. He contends that such an expense cannot be regarded as expense in connection with the election. According to him the connection must be a connection of utility and not something In which is of no use but rather against the chances of victory. this connection the learned counsel draws our attention to Hals 'bury's Laws of F,ngland, Third Edition Volume 14, at page 177 paragraph 314. It is stated there as follows : "While no attempt has been made by judges define exhaustively the meaning of expenses incurred in the conduct or management of an election, it has been said that if expenses are, primarily or principally, expenses incurred for the promotion of the interests of the candidate, they are election expenses." It will be seen that the above passage refers to expenses in curred in the conduct or management of an election. The learned counsel for the appellant and respondent relied upon two decisions of this Court. Reliance was also placed upon two decisions of the Election Tribunals. The decisions of the Election Tribunal are of the same Bench and concern Rule 117. They need not be considered. The two cases of this Court may be noticed. A B c D E F G In Haji Aziz and Abdul Shakoor Bros. v. Commissioner of H Income Tax, Bombay City(') the question arose under the Indian {I) [1961] 2 S.C.R. 651. • • I ' VIDYA SAGAR V. SURINDER NATH (Hidayatullah, C.J.) 89 Income-tax Act: A firm importing dates was to have breached some law and a penalty was imposed on it under the Sea Customs Act. The firm sought to treat the penalty as ex penses and they were disallowed by this Court. Learned Counsel for the appellant relied on this case and claimed that the same principle applies and this penalty cannot be said to be an expendi ture in connection with the election. The analogy is not apt be cause not only the prescriptions of the two laws are different but In Income tax laws the the underlying principle is different also. expenditure must be laid out wholly or exclusively for the purpose of the business etc. Breaking laws and incurring penalty is not carrying on business and therefore the loss is not for the purposes of business. Here the expenditure is to be included if it is incurred in connection with the election and the payment to secure the seat is an expenditure in connection with the election. The mlin~ therefore, does not apply. In the second case a congress candidate had paid a sum of Rs. 500/- of which Rs. 100/- were subscription for membership and Rs. 400/- were a deposit. Later he paid Rs. 500/- as dona tion to the Congress. He failed to include two sums of Rs. 500 /- each in bis return of expenses. The Tribunal found that both the sums were spent in connection with the election and by including them the limit was exceeded. This Court affirmed the decision of the Tribunal. The case was decided under r. 117. The two sums were considered separately. The contention was that under section 123 (7) and r. 117 the candidate was nominated poly on November 16, 1951 and the first sum was paid on September 12, 1951. The question then arose when the candidate became a candidate for the application of the Rule and section 123(7). It was held that the candidate became a candidate when he unequivocally expressed his intention by making the payment. The question of commencement of the candidature is now obviated by prescribing the two terminii between which the expense In so far as the case goes it supports our view. is to be counted. It is risky to quote the decision because the terms of the law on which it was declared were entirely different. We can only say that there is nothing in it which militates against the view taken by us here. On the whole, therefore, the judgment under appeal is correct. The appeal fails and will be dismissed with costs. Y.P. Appeal dismissed. A B c D E G H L2Scip.C!/69-7