RAM DAYAL versus BRIJRAJ SINGH AND ORS.

RAM DAYAL

BRURAJ SINGH AND ORS.

April 30, 1969

[J. C. SHAH AND G. K. MITTER, JJ.)

Representatio11 of the People Act, 1951, ss. 31(1), 77(1) 81(1)-/f 111attrial an1tndml!nl of tltction petition can ht allowed after .txptry oj ptrlod In S. 81(1) within which pttitlon Itself must be filed-Signature end authentication of ptlition urrdtr S. 31(1)-J/ authentication can bt done .tubsequtnt to prt.ftntation of petition-Voluntary expenses to help canclidate's election-If liablt to bt included H:ithin limits ur1tr S. 77( 1).

The ftm responoent was elected to the Madhya Pradesh Legislative Assembly in February 1967. The appellant, o voter in the constituency. challenged his election by an election petition claiming that the nomination paper of one was ill<gally rejected by the Returning Officer and that 1hc respondent had committed several corrupt practices; it was aha allege.ct that the Mahasaja and Rajmata of Gwalior had helped the first mpondent's election in number of ways and had in effect acted as his agents and had incurred considerable expenditure which exceeded the limils prescribed hy the statute. The High Court dismissed the pe1i1ion and also dismissed an application ri1adc by the petilioner for an1enJment of 1he petition to include new allegation on the ground that it \\"'15 made after the expiry of the period prescribed for filing an eltction petition.

On appeal to this Cl)Urt,

HELD : Dismissing the appeal : (i) The High Court bad rightly held that it coul<l nol exercise ii' power to p.!rmil amendment of pelition so as 10 allow ncy.· grounds or charges to he raio;~d or the charact~r of the petilion to he so alrcre<l a.;, to make it in suhstancc new petition, if fresh petition on those allegations '"·ould be barred on the d;1tc of the proposed amendment.

llarish Clumrf,.a Bajpai v. Trilok; Sin<I• [ 1957[ S.C.R. 370; followed.

(ii) The mark made by the proposer on IYs nomination paper was not authenricatcd er attestcJ by one of the dco;ignaled officers as requir~<l under"'· 31(1) read "'ith tn~ definition of the C"'(prcssion "sign·· ins. !(il of the Representation of the People Act. 1951. and the provisions of r. 2(~) oi the Conduct of EJection Rule". 1961. It \\·:ts rhcrcforc ri~htly rejected by the Returning Officer.

The requirement or s. 33(1) of the Act th:-.t thr nomination shall be siancd by the candidate and by the prop~r is mandatory. Signing, \Vbencver signature is necessary, must be in strict accordance v.·irh lhe requirements of the Act and where the signature cunn0t be made ii "n1ust be authorised in the manner prescribed by the Rl!lcs." Attestation is not mere technical or umuhstantial requtrement wi1hin the meaning o{ s. 36(4) of the Act and cannot be dispensed with. The attestation and the satisfaction must exist at the stage of prcsenlation and nmis.sion ot such an essential feature may not be subsequently va1idatcd ~t !he !ltagc of scrutiny any more lhan the omission of candidate to sign at alt could have heen. [532 F. 533 D-F]

Rattan Anmol Singh and Another v. Atma Ram & Others [1955]

I S.C.R. 481; referred 10.

(iii) The High Court had rigHtly held on the evidence that none of the corrupt practices alleged was proved.

Unless it is established that expenditure was incurred in. connection with the election by the candidate or by his election agent or was autho· rised by him it is not liable to be included under s. 77 of the Representation of the People Act. Expenses incurred by any other agent or person without anything more need not be included in t.he account or return, as such incurring of expenditure would be purely voluntary. Assuming in the present case . that expenditure· was incurred by the Maharaj an.d the Rajmata of Gwalior for the purpose of canvassing votes against the principal candidate opposina the first respondent, in the absence of any evidence to show that 1.be Mabaraja and the Rajmata of Gwalior acted as election agents of the first respondent or the ~xpenditure was authorised by him ii was not liable to be included in the account of the election expenses. [541 D-Fl

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1526 of 1968,

Appeitl under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated May 4, 1968 of the Madhya Pradesh High Court in Election Petition No. 39 of 1967. G. L. Sanghi, So/Jhag Mal Jain and B. P. Maheshwari, for the appellant.

H. R. Gokhale, P. L. Dubey, Rameshwar Nuth and Mahinder

Narain, for respondent No. 1.

V. C. Parashar, for respondent No. 4.

'J;he Judgment o~ the Court was delivered by

Shah, J. At the general elections held in February i 967, Brijraj Singh (first ~pondent in this appeal) was declared elected to seat in the Madhya Pradesh Legislative Assembly Qom the Sabalgarh Constituency defeating his rival candidate Raja Pancham Singh by 1706 votes. The appellant Ram Dayal who is voter in the cqnstituency moved an election petition in the High Court of Madhya Pradesh for an order setting aside the election on two gro~nds :

( 1) that tbC nomination paper of one Dhani Rarr; was illegally rejected by the Returning Officer; and

(2) that Brijraj Singh and his agents committed several com1pt practices in relation to the electio11.

third ground tha~ Dataram (third respondent in this appeal) when his nomination was accepted was below the age of 25 and was on that account incompetent to stand for election, was souaht to set up new ~nd made after the expiry of the period p!es-ff tion. The application was disallowed by the High Court. The High Court held that an application for amendment which sought to be set up by an application for amendment of the election peti-cribed for filling an; election petition cannot 1:-e entertained. On

consideration of the evidence the High Court rejected the other grounds, and dismissed the petition. The appellant bas appealed to this Court.

An election petition has, under s. 81 ( 1) of the Representation of the People Act, 1951, to be filed within 45 days of the date of the publication of the result of the election. An application for setting aside the election, that Dataram was below the age of 25 and on that account the election was liable to be set aside under s. 100( l)(d)(i) of the Act made on August 15, 1967, would plainly have been barred, and by amendment the ground could not be permitted to be added. This Court in Harish Chandra Bajpai v. Trilo[ci Singh(') held that the Election Tribunal bas power to allow an amendment in respect of particulars of illegal and corrupt practices, or to permit new instances to be included, provided -the grounds or charges are specifically stated in the petition, but its power to permit amendment of petition under 0. VI r. 17 of the Code of Civil Procedure will not be exercised so as to allow new grounds or charges to be raised or the character of the petition to be 'o altered as to .nake it in substance new petition, if flesh petition on those allegations would on the date of the proposed amendment be barred. By the amendment new ground for setting aside the election was sought to be intro-duced, and the High Court was right in rejecting the application for amendment.

The plea that the rejection of the nomination paper of Dhani Ram by the Returning officer was illegal has no substance. On January 19, 1967 Dhani Ram delivered to the Returning Officer two nomination papers signed by him. Each nomination paper bore thumb impression of one Gokla as the proposer. But the thumb impressions were not authenticated or attested in the pre-sence of the Returning officer or any other officer specified in the Rules. The Returning Officer rejected the nomination papers.

Sec. 33 ( 1) of the Representation of the People Act, 1951. requires that each candidate shall deliver to the returning officer nomination paper completed in the prescribed form and signed by the candidate and by an elector of the comtituency as pro-poser. The expression "sign" is defined in s. 2(i) of the Act as amended by Act 27 of 1956 as meaning "in relation to person who is U4lable to write his name authenticate in such manner as may be prescribed". Rule 2(2) of the Conduct of Election Rules. 1961 provides :

"For the purposes of the Act or these rules, person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument .or other paper if-

la) he has placed mark on such instrument or other paper in the presence of the Returning officer or· the Presiding officer or such other officer as may be specified in this behalf by the Election Commission.

(b) such officer on being satisfied as to his identity has attested the mark as being the mark of that person."

Where person is unab~ to write his name, he may place his

mark on the instrument or other paper and the requirements of law are complied with, provided he puts the mark in the presence of the Returning officer o' the Presiding officer or such other officer as may be specified in that behalf by the Election Commis-sion and such officer on being satisfied as to his identity attests. the mark as being the mark of that person. Gok!a was illiterate. He impressed his thumb mark on the nomination paper : but it was not placed in the presence of any of the designated officers, nor was there any authentication or attestation of the thu..'llb-mark. The requirement under s. 33 ( 1) of the Act that the nomination shall be signed by the candidate and by the proposer is mandatory. Signing, whenever signature is necessary, must be in strict accordance with the requirements of the Act and where the signa-ture cannot be written it must be authorised in the manner pres-cribed by the Rules. Attestation is not mere technical or un-E 3ubstantia! requirement within the meaning of s. 36 ( 4) of the Act. and cannot be dispensed with. The attestation and the satis-faction must exist at the stage· of presentation and omission of such an essential feature may not be subsequently validated at the stage of scrutiny any more than the omission of candidate to sign. at all could have been : Rattan Anmol Singh and Another v. 4tma Ram & Others.('). The nomination papers of Dhani Ram were filed on the last day fixed for receiving the nomination papers. Not being attested as required by law on the date of filing, the defect could not be rectijied at the .time of scrutiny. Evidence of witnesses for the appellant who deposed that that at the date of scrutiny, Gokla was present outside the office of the Returning Officer and that Dhani Ram brought to the notice of .the Returning Officer that· Gokla was present and that his sipture· may be attested, and that the Returning officer declined to accede I to the request need JJOt be considered. The Returning officer could not allow' Dhani Ram or his proposer to rectify the defect · in the nomination papers after the last date of nomination . .• Several corrupt practices were set up in the petition. The ~\!fl! practices relied upon by the appellant in this appeal may be bi-Qadly classifi~ under three heads :

(I) that on January 19, 1967, Brijraj Singh paid Rs. 250 to Sone Ram respondent No. 5 at Morena and successfully persuaded him not to file his nomination paper.

(2) that Brijraj Singh and his agents toured the constituency in jeep fitted with microphone and visited many villages and delivered speeches reflecting upon the character and conduct of Raja Pancham Singh candidate sponsored by the Congress Party.

One Chhotey Lal respondent No. 4 was made to contest the election by Brijraj Singh to "devide the votes of Raja Pancham Singh" and that Chhotey Lal who supported the candidature of Brijraj Singh made state-mQDts between January 20, 1967 and February 19, 1967 and distributed leaflets containing statements of fact relating to the personal character and conduct of Raja Pancham Singh which were false to the know-ledge o( Chhotey Lal or who did not believe them to be true, and that the leaflets were issued and circulated with the CO!!ISent of Brijraj Singh, :\Dd

(3) that the Maharaja Scindia of Gwalior accom-panied by Brijraj Singh visited several villages in helicopter and addressed election meetings in support of the candidature of Brijraj Singh and the Maharaja acted as his agent and in-curred expenditure for carrying on election pro-paganda : if the expenditure incurred for the purpose of obtaining the use of the helicopter and fleet of motor cars used by him were taken into acc.,unt, such expenses being incurred or authorised by Brijraj Sfngh would considera· bly exceed the limit prescribed by the statute.

In the view of the High Court Chhotey Lal did commit cor· rupt practice in that he distributed on January 29, 1967 at Kelaras village leaflets containing statement' of fact relating to the perso-nal conduct of Raja Pancham Singh. but it was not proved that Chhotey Lal contested the election at the instance of Bri jra j Singh "to divide the votes of Raja Pancham Singh" or that he was the agent at any time of Brijraj Singh nor was it proved that Chhotey Lal had ever supported the candidature of Brijraj Singh or that any pamphlet of the nature circulated by Chhotey Lal was issued or circulated by Brijraj Singh. In that view the Hi!!h Court held that the election of Brijraj Singh was not materially affected by the candidature of Chhotey Lal. The High Court rejected the contention of the appellant that Brijraj Singh com-mitted other corrupt practices alleged. The High Court accord-

ingly passed an order declaring that the appellant had failed to establish that Brijraj Singh had committed any corrupt practice with which he was charged. The High Court dismissed the elec-tion petition tiled by the appellant with costs, but declared that the 4tl\_ reipondent Chhotey Lal was guilty of the corrupt practice within the meaning of s. 123(4) of the Act and was ·on that account disqualified for period of six years from the date of the order under s. BA of the Act. Against that order this appea; has been preferred by the appellant.

Chhotey Lal has not appealed against the order r~corded against him. He is impleaded as party-respondent and he has appeared before this Court through counsel. At the hearing counsel appearing for Chhotey Lal urged that the finding of the High Court that Chhotey Lal was guilty of the corrupt practice charged against him is contrary to evidence. But in the absence of an appeal filed by Chhotey Lal the ground cannot be permitted to be agitated by hun. The appeal was filed by the appellant· challenging the order of the High Court refusing to set aside the election of Brijraj Singh on the three grounds set out hereinbefore. The scope of the am>eal cannot be expanded by permitting Chhofoy Lal who could have, but has not chosen to app.eal, to plead that he has not committed any acts amounting to corrupt practice.

The case that Brijraj Singh gave Rs. 250 to Sone Ram and induced him to withdraw his candidature is unreliable. One Shanker Lal deposed that on January 19, 1967, he met Brijraj Singh and Sane RaJI1c in the compound of the office of the Colicctor, Morena, and the fotmer induced Sane Ram not to contest the election and offered to pay bribe of Rs. 250, and paid Rs. 250 to Sone Ram. According to the witness there were several persons pre.sent at the time when the bribe was offered and paid, but none of those persons was called as witness on behalf of the appelant. One Tikaram who was alleged to be present was examined on behalf of Brijraj Singh and he denied that any such offer was made or bribe paid. Some Ram also denied that he had received any bribe from Brijraj Singh. He stated that he had borrowed Rs. 200 from his' maternal uncle to deposit the amount for his candidature but since his maternal uncle declined to incur any further expenditure and dissuaded him from contesting the elec-tion he had to abuldon his candidature. In the opinion of the Trial Judge the witness Shanker Lal was an untruthful witness and we sec no reason to disagree with that view.8 We may now tum to the plea that Brijraj Singh made false allegations against the personal conduct and character of Raja Pancham Singh orally and by circulating pamphlets, on which great deal of argument was advanced before us. It was the case Ll4 Sup, C.I./69-S

of tho appellimt that Brijraj Singh and his two workers Laxml chand and Shankarlal VJSited several villag~ bet~een ebmary 2, 1967 and February 26, 1967, m connection with the election campaign and made false statements against the character and conduct of Pancham Singh in the meetings held in those villages and "in door to door canvassing in" those villages. Those allega'. , tions are denied by Brijraj Singh and by Laxmichand and Shankar • Jal. The case of the appellant was that these allegations w~re made in the course of the election propaganda in ten villages. but evidence was led in respect of statements made in six villages. It is said th3t Drijraj Singh and his supporters visited the village Narhela and held meeting in that village. One Dhan;ram <tated that meeting was held at the village Narhela, but the witness did not say that either Brijraj Singh or his workers made any allegations against the personal character of Pancham Singh. According to this witness Brijraj Singh merely requested the persons assembled therein the meeting to vote for him. Witness Ghansu stated•that meeting was held at the village Narhela and the same was addressed by Brijraj Singh and Laxmichand and that these two persons stated that Pancham Singh was ·•associating with dacoits" and had misappropriated money belong-ing to school and had got the school closed and that whenever any member of the legislative assembly sought to visit him he set hi< dogs at him. In the election petition there was no refertnce to any meeting held at Narhela or of any offending statements mad~ at any such meeting. It was stated in paragraph IIl(a) of the election petition, in setting out the details of the cormpt practices. that the first respondent accompanied by Laxmichand and Shankerlal toured in jeep fitted with microphone and visited the village Narhela on Febmary 2, 1967 and canvassed votes going from door to door. The witness Ghansu did not belong to Narhela, and no witness from village Narhela was examined. i Laxmichand, Shankerlal and Brijlal Singh denied that any state-F ment against the personal conduct and character of Panch1m Singh was made by them at Narhela either in any meeting or in "door to door canvassing". Phoolsingh-the only witness exam-ined on behalf of the appellant-<lid not. support his ca<e tliat Singh at Budhreta. About the village Khirla. witness Kesharsingh stated that Brijraj Singh and ·Laxmichand had held meetines and had 'nade statements against the personal conduct and character of Pancham Singh. But the witness did not belong to the villn?-c Khirla : he is resident of Pahadgarh village which is at distance of fifteen miles from Khirla. No witness from Khirla was ~~­amined. Witness Dataram said that at meeting held at SujamJ. Brijraj Sin2h had made any statements derogatory of Pancham Pancham Singh." But the testimonv of the witne<s who is salcl to be constantlv under "police surveillance" is unreliable. About the meeting held at Village Kelaras the appellant examined three

witnesses Narayan, Kanhaiyalal and Sardarsingh. The first two witnesses said nothing about any statement made about the per-sonal character of Raja Pancham Singh at the meeting. Sardar-singh supported the case of the appellant, but the testimooy of the witness was inconsistent with the case of the appellant. About the meeting held at village Kuloul\ the appellant examined wit· ness Badri who stated that both Brijraj Singh and Laxmichand had made statements derogatory of Pancham Singh. His expla-nation about his presence at the village Kulouli was apparently untrue and his testimony was otherwise unreliable.The learned Judge summarised the evidence of the witnesse~ on behalf of the appellant and concl)lded that the appellant had "miserably failed" to establish that Brijraj Singh and his agents Laxmichand and Shankar Lal had made any statements derogatory to the personal character of Pancham Singh. In the view of the learned Judge it was not proved that Brijraj Singh and his two agents had made statements that Pancham Singh was an associate of dacoits, nor was the ·statement that Pancham Singh had mis-D appropriated the funds of the school proved. The learned Judge also held that the statem~nt alleged to have been made by Brijraj Singh and his agents •that Pancham Singh was responsible for getting the school at Pahadgarh closed and that "he lets loose ferocious dogs towards the persons who go to see him" were trivial and did not involve apy moral turpitude, and even assuming that those statements were made, no corrupt practice could we said to have been committed on that account under s. 123 ( 4) of the Act.

The learned Trial Judge found that Chhotey Lal committed corrupt practice by distributing pamphlets casting reflections upon the personal character of Pancham Singh. But in the view of the learned Trial Judge there was no reliable evid®ce to prove that ChhOtey Lal acted o.n behalf of Brijraj Singh or that the latter defrayed the expenses of the pamphlet or that the agents of Brijraj Singh distributed the offending pamphlets. The leaned Judge has carefully considered the evidence and no serious argument has been advanced before us otn that part of the case which may justify us in taking different view. Not word was said that the ex-p~nses incurred by Chhotey Lal for getting the pamphlets printed were reimbursed, nor was the evidence Qf the witnesses Sanwaldas Gupta, Kalyansingh Tyagi examined on behalf of the appella,n1 that Brijraj Singh and his agents circulated !lie oamphlets true. The learned Judge observed that the story that out of the 2,500 copies of the pamphlets printed, 2,000 copies of the pamphlet had been handed over by Chhotey Lal to Brijraj Singh on the night on· January 19, 1967, was "a clumsy and crud~ invention of these two witnesses", and 'was utterly false and unrehable". After con-

sidering the various improbabilities and the discrepancies relating to the testimony of the witnesses Sanwaldas Gupta and Kalyan-si.ngh Tyagi, the learned Judge observed that these witnesses "in-vented lies" and did "their best to introduce clumsy and crude improvements at the stage of evidence" with the "object of bols-tering up" the appellant's case and through him that of Raja Pancham Singh. In his view the story that the pamphlet Annex-ure 'A' was issued or circulated with the consent of Brijraj Singh was false. The learned Judge also found on consideration of the e' idence that at no stage did Chhotey Lal support the candi-dature of Brijraj Singh and that it was not proved that the pamph-let Annexure 'A' was ever issued or circulated with the consent of Brijraj S;'lgh. In his view Brijraj Singh had no connection with the printing and publication of the pamphlet and on that account the plea of corrupt practice set out and founded on the circulation of the pamphlet was not proved. We 5CC no reason to disagree with the view expressed by the learned Judge.

It was then urged that the Maharaja Scindia of Gwalior in-~urred considerable expenditure as agent of Brijraj Singh in CJUJ.-vassing votes and the expenditure so incurred was liable to be included in the election expenses of Brijraj Singh. It was claimed that the Maharaja and the Rajmata of Gwalior as a~nts of Brijraj Singh took leading part in canvassing votes in different villages and in doing so used helicopter and fleet of motor cars and spent large sums of money which were not disclosed in the account <>f eleetion expenses filed by the first respondent Brijraj Singh.Brijraj Singh had cQDtcsted the election as an independent candidate. But the appellant says that the Maharaja and the Rajmata of Gwalior addressed election meetings and in those meetings they declared that Brijraj Singh was sponsored as can-didate by them, and that the voters should support Brijraj Singh. Brijraj Singh in his evidence stated that the Maharaja had the "Central Election office of Maharaja Gwalior" representing the alliance of various political parties and individuals opposed to the Congress candidate and in propagating its views and policy during the election this organisation also supported the candidates who opposed Pancham Singh.

There was no reliable evideince that the canilidature of Brijraj Singh was sponsored by the Maharaja and the Rajmata of Gwalior. The opinion expressed by the witness Dataram cannot do duty for evidence in support of the case of the appellant Sanwaldas Gupta and Kalyansingh Tyagi stated that they had requested the Maharaja to adopt Chhotey Lal as his canilidate for electiQD, but they were told by the Maharaja that he had already decided to set up Brijraj Singh as his candidate and that they also should actively support him. 1be evidence of these witnesses 'tfllll found to be

unreliable by the High Court. In our judgment the High Cou:t has rightly rejected their testimony. It was said that in certain villages speeches were made by Brijraj Singh that he was set up as candidate by the Rajmata of Gwalior. But there is no re-liable evidence iin support of that case.

Reliance was strongly placed upon visits made by the Rajmata of Gwalior at villaiies Kelaras and Sabalgarh on Feb. 4 or Feb. 5, 1967, with ll.eet of motor cars and about the speeches delivered in those villages declaring that Brijraj Singh wa~ set up by her and that the voters should vote for him and strengthen her hands. It is also said that the Maharaja visited Kelaras, Pahadgarh, Sujarma, Budhreta, Kulhouli, Sabalgarh, Jhunpura and Narhela ~Feb. 11 or 12, 1967 in helicopter and addressed meetings in those villages and in his speeches declared that Brijraj Singh was sponsored as candidate by him and his mother and the voters should vote for him. large number of witnesses Keshrisingh, Narayaa Sardar-singh, Dhaniram, Phoolsingh, Kanhaiyalal, Mata Prasad, Dwarka Prasad, Sanwaldas Gupta, Kalyansingh Tyagi, beliides the appel-lant, were examined in support of that case. Brijraj Singh admit-ted that on Feb. 4 or 5, 1967, the Rajmata had visited the villages Kelaras andi Sabalgarh and had addressed meetings in those villag-es. But he denied 'that she declared in those meetings that he was set up as CSJ!!didate by her. He further stated that the Maharaja had visited on Feb. 11 or 12, 1967, fin villages, Kelaras, Pahadgarh,,' Budhreta, Jhundpura and Sabalgarh in helicopter and addressed meetings in those villages. But in none of those meetings dld he declare that Brijraj Singh was candi-date set up by the Maharaja. The witnesses examined on behalf of the appellant were. in view of their general tenor, found un-reliable. The learned Judge therefore stated his conclusion that on Feb. 4 or 5, 1967 the Rajmata of Gwalior visited two villages, Kelaras and Sabalguh and addressed meetings there; and her son the Maharaja visittid five villages, namely, Kelaras, Pahadgarh, Budhreta, Jhundpura and Sabalgarh in helicopter on or about Feb. 11 or 12, 1967 and addressed meetings there, but there was no reliable evidence to prove that Brijraj Singh was sponsored as candidate by the Rajmata or the Maharaja of Gwalior. In the view of the learned Judge the testimony of the witnesses on behalf of the appellant was "so thoroughly unreliable" that no reliance could be placed upon it. He concluded, after considering the evi-dence of Budharairi, lhat Brijraj Singh was an independent candi-date and ci>ntested the election as an independent candidate, and even though llleetings were addressed by the Maharaja and his mother-the Rajmata--they did not say that Brijraj Singh was set up as their candidate." We have carefully gone through tbe evidence of the witness and heard the arguments advanced at the

Bar and see no reason to disagree with the view taken by the learned Judge.

The evidence of the witnesses that Brijraj Singh travelled with the :vJaharaja of Gwalior in his helicopter and visited several vii· ]ages for his election campaign was also unreliable and was, in our judgment, rightly disbelieved. The evidence shows that when the :.taharaja visited the village Kelaras the only occupants in the helicopter were the Maharaja and lhe pilot and that Brijraj Singh .va1 not in the helicopter when the Maharaja visited Kelaras. Similarly about the village Jhundpura there is evidence that Brij-raj Singh was noc with the Maharaja in the helicopter. About the village Budhreta the witness Phoolsingh deposed that Brijraj Singh was in the helicopter travelling with the Maharaja. But from the cross-examination of the witness it appears that his testimony was "worthless." The testimony of Phoolsingh was inconsis-tent with the testimony of Ramcharanlal--Sarpanch of the village. Similarly about the visit to Sabalgarh village two of the witnesses ex:•mined "ere Budhram and Sanwaldas Gupta. Budhram said nothing about Ilrijraj Singh accompanying the Maharaja in th~ helicopter. Sanwaldas Gupta supported the case of the appellant. but having rc~ard to hi' interest in the appellant and the general_ unreliability of his testimony. he could not be believed. About the village J>ahadgarh. according to Mata Prasad examined on behalf of the appellant. Ilrijraj Singh was in the helicopter anJ the witness claimed that he had taken photographs of Brijraj Singh while he was in the helicopter. We have seen the original photo· graph' Exts. p.J !A. P-1 IB. P-12A. P-12B. P-13A and P-14A which arc in respect of the journeys by th6 helicopter, the heli-copter getting ready for take off. of the meetings addressed by the \1aharaja and of the occupants in the helicopter. Some of the photographs are so hazy and indistinct that it is impossible to identify any one in the group. For instance the photograph Ext. P-13A in which it is claimed that Brijraj Singh was in the heli-copter shows merely a. smudge and it is impossible to say that any one was sitting in the helicopter. In the view of the learned Judge the witness Mata Prasad and Dwarka Prasad had been tutored to give false testimony that Brijraj Singh had accompanied the Maharaja at the time when the helicopter landed and also when it took off and on the consideration of the evidence it was esta-blished that Brijraj Singh was not with the Maharaja of Gwalior either at the time when the helicopter landed at the five vil!ages-Kelaras. Jhundpura, Budhreta. Sabalgarh and Pahadgarh or when the heliropter took off. The learned Trial Judge disbelieved the witness Mata Prasad. We have scrutinized the evidence of Mata Prasad and have seen the original photographs and have no doubt that the learned Judge was right in holding that the testimony of the witness Mata Prasad was unreliable.

In the absence of any connection between the canvassing acti-vities carried on by the Maharaja and the Rajmata with the can-didature of Brijraj Singh, it is impossible to hold that any expen-diture was incurred for Brijraj Singh which was liable to be included in the election expenses of the first respondent. Under s. 123(6) of the Representation of the People Act, 1951, the in-B curring or authorizing of expenditure in contravention of s. 77 is corrnpt practice and s. 77 provides, insofar as it is material :

" ( 1) Every candidate at an election shall, either by himself or by his election agent, keep separate and correct account of all expenditure in connection with the election incurred or authorised by h;m or by his election agent between the date of publication of the notification calling the election and the date of declara-tion of the result thereof, both dates inclusive.

( 3) The total of the said expenditure shall not ex-D ceed such amount as may be prescribed."

Unless it is established that the expenditure was incurred in con-nection with the election by the candidate or by his election agent or was authorised by him it is not liable to be included under s. 77 of the Representation of the People Act. We agree with the High Court that under s. 77 ( 1) only the expenditure incurred or autho-E rised by the candidate himself or by his election agent is required to be included in the account or return of election expenses and thus expenses incurred by any other agent or person without any-thing more need net be included iu the account or return, as such incurring of expenditure would be purely voluntarv. Assuming. that expenditure was incurred by the Maharaja and the Rajmatl for the purpose of canvassing votes against Raja Pancham Singh. in the absence of any evidence to show that the Maharaja and the Rajmata of Gwalior acted as election agents of Brijraj Singh or the expenditure was authorised by Brijraj Singh it was not liable to be included in the account of the election expenses.

We agree with the High Court that there is no evidence on the record to prove that Brijraj Singh actually spent any money on the helicopter used by the Maharaja in visiting the five villages and the two cars used by the Rajmata in visiting the two villages. There is no evidence on the record direct or circumstantial to prove that Brijraj Singh had authorised the Maharaja and his mother to incur the expenditure on the helicopter and the two cars. It is not necessary then to consider whether the expenditure incurred by the Maharaja and the Rajmata of Gwalior in respect of the helioopter and the motor cars can be said to be expendi-ture incurred by political party for carrying on propaganda to

promote their views and their party interest and their policies and to educate the electoral constituency, and on that account is not liable to be included in the election expenses of the candidate.

Having carefully considered the evidence and having heard the arguments advanced at the Bar at considerable length, we are of the view that the appellant has failed to establish that Brijraj Singh was set up as candidate by the Maharaja or the Rajmata of Gwalior as their nominee or that the Maharaja and the Rajmata had incurred any expenditure as an agent of Brijraj Singh or the expenditure incurred by the Maharaja and the Rajmata of Gwalior was authorized by Brijraj Singh and was liable to be included in his account of election expenses under s. 77 of the Representation of the People Act, 1951.

The appeal fails and is dismissed with costs in favour of the first respondent. The order of costs in favour of the 4th respon-dent passed by the High Court is set aside.

Appeal dismissed.

RK.P.S.