Venkatarama Ayyar, J. - (1.) This is an appeal by special leave against the order of the Election Tribunal, Vellore, declaring the election of the appellant to the Legislative Assembly void on the ground that there had been a violation of S. 123(7), Representation of the People Act No. 43 of 1951. Under that section, it is a major corrupt practice for a candidate or his agent to incur or authorise the incurring of expenditure in contravention of the Act or any rule made thereunder. Rule l17 provides that: "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 Sch. V." Under Sch. V, the maximum expense specified for election to the Madras State Legislature from a single-member constituency, such as Ranipet is Rs. 8,000. The return of the expenses lodged by the appellant showed that he had spent in all Rs. 7,063 for the election, and that was within the limit allowed. The charge against him in the petition was that he had failed to disclose in his return two sums of Rs. 500 each, spent for election purposes, and that with the addition of those amounts, the maximum specified had been exceeded. As regards the first amount, the facts found are that on 12-9-1951 the appellant applied to the Tamil Nad Congress Committee for permission to contest the election as a Congress candidate, and along with his application he paid Rs. 500 out of which Rs. 100 was subscription for membership and Rs. 400 deposit, which was liable to be returned under the rules, in case the applicant was not adopted as the candidate, but not otherwise. In fact, the appellant was adopted as the Congress candidate, and it was on that ticket that he fought and won the election. The second payment of Rs. 500 was on 23-9-1951 to the North Arcot District Congress Committee, which was in charge of the Ranipet constituency. The Tribunal held that both these sums were paid for purposes of election and should have been included in the return made by the appellant, that if they were so included, the maximum prescribed was exceeded, and that therefore S. 123(7) had been contravened, and accordingly declared the election void under S. 100(2)(b) of the Act. The appellant disputes the correctness of this order. The Tribunal also recorded as part of the order a finding that the appellant had become subject to the disqualifications specified in S. 140, sub-cls. (1) (a) and (2). The appellant attacks this finding on the ground that it was given without notice to him, as required by the proviso to S. 99.
(2.) The points that arise for decision in this appeal are (1) whether on the facts found, there was a contravention of S. 123(7) of Act No. 43 of 1951; and (2) whether the finding that the appellant had become disqualified under S. 140 is bad for want of notice under the proviso to S. 99 of the Act.
(3.) (1) Taking first the sum of Rs. 500 paid by the appellant to the Tamil Nad Congress Committee on 12-9-1951, the contention of the appellant is that S. 123(7) and R. 117 have reference only to expenses incurred by a candidate or his agent that the appellant was nominated as a candidate only on 16-11-1951, and that as the payment in question was made long prior to the filing of the nomination paper, the provisions aforesaid had no application. That raises the question as to when the appellant became a 'candidate' for purpose of S. 123(7). Section 79(b) of Act No. 43 of 1951 defines a candidate thus: "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." Under this definition which applies to S. 123 (7) , all election expenses incurred by a candidate from the time when, with the election in prospect, he holds himself out as a prospective candidate and not merely from the date when he is nominated, will have to enter into the reckoning under R. 117 read with Sch. V. That the election was in prospect when the amount of Rs. 500 was paid is clear from the very application of he appellant dated 12-9-1951 wherein he states that he desires "to contest as a congress candidate in the forthcoming election." That is not disputed by the appellant. What he contends is that though the election was in prospect, he had not become a prospective candidate at that time, and that he became so only when the Congress adopted him as its candidate on 13-11-1951. It was argued that it was open to the Congress Committee either to adopt him as its candidate or not, that if it did not adopt him, he could not under the rules to which he had subscribed, stand for election at all, that until he was actually adopted therefor, his candidature was nebulous and uncertain, and that the application was consequently nothing more than a preliminary step-in-aid of his becoming a prospective candidate.;