SUPREME COURT OF INDIA

Before:-M. Hidayatullah, C.J. and G.K. Mitter, J.

Civil Appeal No. 863 of 1968. D/d. 30.10.1968.

Hans Raj - Appellant

Versus

Pt. Hari Ram and others - Respondents

For the Appellant :- Rameshwar Nath, Advocate of Rajinder Narain and Co.

For the Respondent No. 1 :- A.K. Sen, Senior Advocate (V.C. Mahjan, Advocate, and K.L. Mehta and S.K. Mehta, Advocates of K.L. Mehta and Co., with him).

Case Referred :-

Rananjaya Singh v. Baijnath Singh, (1955) 1 SCR 671.

JUDGMENT

Hidayatullah, C.J. - This is an appeal from the judgment of the High Court of Delhi, Himachal Bench at Simla dated January 16, 1968 dismissing the election petition filed by the present appellant. The appellant himself was also a candidate and along with nine others was pitted against Hari Ram, the first respondent who eventually won. This election was from the Amb Constituency of Himachal Pradesh. The election of the returned candidate was questioned on numerous grounds but of these only two were pressed before us in the appeal. These grounds relate to the hiring of two jeeps for the purpose of the election by the returned candidate without showing the expenses incurred on the hire of the jeep and was petrol and oil used in them, which it is said, if added to the return of expenses given by the returned candidate, would take the election expenses beyond the permitted limit of Rs. 2000. The returned candidate had filed his return of election expenses and shown the total expenditure as 1115.15 NP. According to the election petitioner he had engaged one jeep No. HIM 1177 from the Himachal Pradesh Transport and used it from February 4 to February 10 incurring a total expenditure of Rs. 1069 over. A further expenditure of Rs. 300, it was alleged, was incurred on account of petrol etc. According to the election petitioner if the sum of Rs. 1369 are added to the return of expenses the limit will pass and therefore the election will be liable to be set aside under Section 77(3) read with Section 123(6) of the Representation of People Act, 1951.

2. In addition to the above allegation an other jeep No. HIM 1667 was also said to have been hired and used from January 14, 1967 to February 21, 1967 and an expenditure of Rs. 370 on this account was alleged as not included in the election return. It was admitted by the learned counsel for the appellant that the second item by itself was not enough to avoid the election, but if the first item was accepted the election of the returned candidate must stand avoided. The main argument was, therefore, on the hiring of the first vehicle, namely, HIM 1177.

3. A number of witnesses have spoken to its use including the driver of the vehicle PW 9. The learned counsel for the appellant, however, concentrated upon the documents relating to the hiring of the vehicle and urged upon us to accept the conclusion that the vehicle although ostensibly hired by the Himachal Pradesh Congress Committee was in reality hired by the returned candidate who had omitted to show the hire charges in his return. The learned Judge who tried the case came to the conclusion that the evidence, oral and documentary, only established that the jeep was "used also" by the respondent in connection with his election although engaged by the Congress Committee. The learned Judge held that the jeep was not hired by the returned candidate but by the Congress Committee for the general purpose of propaganda on behalf of the Congress party.

4. Learned counsel wants us to hold that the jeep was, in fact, hired by the candidate himself and he contended that there are indications in the documents which support the case set up by the election petitioner in his petition. He referred us first to the fact that the Government had established a pool for the purpose of hiring out jeeps to the different candidates at the election. One such jeep (among others) was hired by the Himachal Pradesh Congress Committee vide Ex. PW-1/3. In that document it was mentioned that the jeep should be made over to the bearer of the letter and it is an admitted fact that the bearer of the letter was the returned candidate himself. The returned candidate also signed a check slip on January 26, 1967, Ex. POW 1/4 in which the date from which the hiring was to commence together with the rates applicable to the hire were stated. The jeep was to report back on February 11. This document was also signed by the driver Ruplal who was examined as PW 9. Reference was also made to another document which a copy of a bill Ex. PW 1/5 dated March 18, 1967 in which this particular jeep was said to have been supplied to Hari Ram and an amount of Rs. 1067.25 was demanded from the President, Himachal Pradesh Congress Committee. Learned counsel for the appellant contended that these documents read with the log- book of the jeep clearly show that the jeep was, in fact, hired for and on behalf of the returned candidate although ostensibly by the Congress Committee. He, therefore, contended that the amount must be debited to the returned candidate and added to his return of expenses. The log-book of the jeep is Ex. PW 1/6 and runs from January 26 to February 4, 1967. This jeep was apparently taken on hire from the 26th of January on which day 18 litres of petrol were put into it at Una Pump. The entry of the filling of the petrol is signed by Hari Ram himself. Subsequently the jeep seems to have remained either at Chalet or at Mubarakpur and to have started on its journeys every day either from the one place or the other. Petrol from time to time was put into the jeep. The entry of the filling of the petrol is, however, not signed by Hari Ram in the column where it was first signed by him on 26th January 1967, but in the last two columns there are signatures of Hari Ram against the different entries. These total to 11 entries with a serpentine bracket in the last but one column after which in the last column is an entry `Admitted Hari Ram'.

5. Learned counsel contended that these entries between them clearly demonstrated that the jeep was not only hired but was used exclusively for Hari Ram who must have paid the amount although the bill stood in the name of the Congress party. He also drew our attention to the expenditure on the hiring of the loud-speakers which were taken from a shop at Hoshiarpur and presumably carried to the constituency at Amb. He contended that no expenditure on account of transport was shown and the candidate admitted that the equipment was transported from Hoshiarpur to the constituency in the jeeps hired by the Congress party. He submitted that this also gave an indication that the jeep was, in fact, used by the returned candidate without showing the expenses in his return of expenses. From this, the learned counsel contended that the finding given by the learned Judge who tried the case needed to be viewed somewhat differently. The learned Judge had given the finding that the jeep was hired by the Congress Committee but was `used also' for the returned candidate. Learned counsel wanted us to stand that finding on its head. According to him, the jeep was hired by the returned candidate although it was used also for the propaganda of the Congress. Whichever way one looks at the matter it is quite clear in view of the decision of this court reported in Rananjaya Singh v. Baijnath Singh, (1955) 1 SCR 671 that the expenditure must be by the candidate himself and any expenditure in his interest by others (not his agents within the meaning of the term in the Election Law) is not to be taken note of. Here, the hiring was by the Congress Committee which was not such an agent and therefore the amount spent by the Congress Committee cannot be taken as an amount which must compulsorily be included in the expenditure over the election by a candidate. If this be the position, we have to decide whether this amount spent on the jeep must be taken to be an expenditure made by the candidate himself. Of that there is no evidence. The bill stands in the name of the Congress Committee and was presumably paid by the Congress Committee also. The evidence, however, is that this jeep was used on behalf of the returned candidate and to that extent we subscribe to the finding given by the learned Judge. Even if it be held that the candidate was at bottom the hirer of the jeep and the expenditure on it must be included in his account, the difficulty is that this jeep was used also for the general Congress propaganda in other constituencies. As we stated, the jeep remained at Chalet and at Mubarakpur. No doubt Chalet is the home town of the returned candidate and his office was situated at Mubarakpur, but that does not indicate that the jeep was used exclusively on his account. The petrol chart shows that petrol was bought at several pumps, both inside the constituency and outside. This shows, as does the evidence, that the jeep was used not only in this constituency, but also in the other constituencies. If this be true, then, it is almost impossible on the evidence at it exists in this case to decide how much of the use went for the benefit of the returned candidate and how much for the use of candidates in the other constituencies also put up by the Congress Committee. In this situation it is difficult to say that the whole of the benefit of the jeep went to the returned candidate and once we hold that the entire benefit did not go to him, we are not in a position to allocate the expenses between him and the other candidates in the other constituencies.

6. Since the law requires the setting aside of an election only on proof that the maximum amount allowed by law as the expenditure has been exceeded, we are unable to give a finding which would go to establish that this limit was exceeded in the present case. We are, therefore, unable to see our way to reversing the decision of the learned Single Judge which we think is sound, regard being had to the state of the law such as it is today.

7. We are, however, satisfied that this kind of practice of supplying jeep from the party funds is one to be deprecated. The limit of expenditure in the case was rupees two thousand. It is obvious that if Rs. 1600 or so were to be spent on the hiring of single vehicle, something would have to be done by way of a device to avoid showing such expenditure in the return. An expenditure of that magnitude would hardly leave any extra money available for the normal propaganda which involves printing of hand-bills, posters etc., and payment of workers. Therefore, the party was making it easy for the candidates to run their propaganda exclusively for themselves through vehicles supplied by the party. In the present state of the law we cannot say that this is not permissible, but we think that it leads to avoidance of the salutary rule about expenditure and the limits on it. However, that is a matter for the Parliament to consider and not for us to rectify by a decision. Indeed such an appeal was also made in the earlier case to this court and on that occasion too the learned Chief Justice said that the appeal should be made to Parliament and not to courts.

8. We, however, think that in the circumstances of this case we should not allow costs to the returned candidate and we order accordingly, although we order the dismissal of the appeal. The security amount deposited by the election petitioner shall be refunded to him unless there be any other claim against it.

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