JEET MOHINDER SINGH v. HARMINDER SINGH JASS!

10. That the returned candidate has incurred and authorised expenditure over and above the prescribed limit, provided under Section 77 of the Act, and thus committed a corrupt practice within the purview of Section 123(6) of the Act. The material facts and particulars are given G hereunder :

(a) That the limit in Section 77 of the Act for expenses for an Assembly Constituency in Punjab is Rs. 1.35 lakhs. This limit equally applies to 109-Talwandi Sabo Constituency. However, the return of expenses filed by the returned candidate does not conform to Rule 86 of the H Conduct of Election Rules, 1961.

J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.) 71

(b) That as per the return of expenses filed by the returned candidate, the total expenditure shown by him is Rs. 44,832 only. But, in fact, he incurred expenditure manifold higher than the prescribed limit under Section 77 of the Act.

... -_. "(d) That from the office complex of the respondent, the observer also took certain pointed posters, which did not carry any printline on them. Such posters were stickers of two types, one round and the other rectangular. Another poster carrying the photograph of the returned candidate and the then Chief Minister of Punjab, Smt. Rajinder Kaur Bhattal. The petitioner was informed that the observer sent a report to the Election Commission of India in this regard." C xxx xxx xxx

(f) That the returned candidate also got published various posters and .... hand bills. One such poster has the Caption "Pichhle Panj Saalan which Harminder Singh Jassi Walon Talwandi Sabo Hatke which Karwai D Gai Vikas Karjan Da Verva" (The development achievements of Shri Harminder Singh Jassi in Talwandi Sabo Constituency during the last five years.) This poster was widely distributed and affixed in the constituency in all the villages and towns. The estimate is that this poster was printed and published to the extent of 50,000. The cost of such posters is Rs. 50,000. The other posters utilised were with the E Caption "Vidhan Sabha Hatke Talwandi Sabo Taon Congress (I) De Umeedwar" with printed photographs of the returned candidate and the then Chief Minister of Punjab, Smt Rajinder Kaur Bhattal. This poster is without any printline and the observer had taken hold of these posters from the office complex of the returned candidate at Talwandi Sabo. Similarly, another poster was also affixed and distributed all over the Constituency with the same Caption, but carried only photo print of the respondent with his election symbol. This of course, is with the print line of the press as Sat Guru Press. These posters were freely distributed and affixed and the estimate is that both these ' posters were printed and published to the tune of 50,000 each the cost of the two posters comes to Rs. 1,40,000 as per the market rate. The returned candidate has shown in all expenditure on these posters as Rs. 8,375. There is substantial difference between the actual cost and the one shown in the return of expenses to the tune of Rs. 1,81,625.

xxx xxx xxx H

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.A (g) .............. Thus the returned candidate has incurred much more expenditure and authorised the same over and above the one prescribed under Section 77 of the Act and committed a corrupt practice within the purview of Section 123 (6) of the Act.

xxx xxx xxx \ . B The averments made by the appellant have been denied in the written statement. It is denied that the respondent at any time incurred or authorised the expenditure beyond the amount of Rs. 44,832 as stated in the return of expenses. It was denied that the observer had taken in possession certain posters from the office complex of the respondent in his presence. As to the poster with the caption "pichhle panj slan which ..... " the respondent stated that the poster was got printed and distributed by the block congress committees of Talwandi Sabo and Mor Mandi in routine in the third week of December, i.e., much before the filing of nomination paper by the respondent. . The said poster was neither got printed nor distributed nor pasted by the respondent or on his behalf in the constituency. The respondent had got printed 3500 posters of different sizes and types from Satguru Printing Press for Rs. 2800. He had also got printed 2000, 1500 and 1000 posters respectively for Rs. 1800, 1875 and 900 and handbills ten thousands in numbers for Rs. 1000 only. The total expenditure incurred by the respondent on the printing of posters was Rs. 10275 which has been correctly shown in the return of the expenses.

Here itself, we may state that as per the affidavit filed in support of the election petition the averments made in sub-para (a) (b) and (e) of the para 10 are stated to be true to the personal knowledge of the appellant while the contents of sub-paras (c) (d) (f) and (g) are stated to be based on information received from Pratipal Singh Bhindal and believed by the appellant to be true. The infirmity with which the averments made in the election petition suffer from is that the dates between which the posters are alleged to have been distributed and pasted in the constituency are not mentioned in the election petition. From the averments made in the petition it cannot be deduced that the expenditure on account of the posters even if incurred by the respondent, was so incurred between the date of nomination and the date of declaration of result of the election. In the absence of the appellant having made a positive allegation of the alleged expenses having been incurred between the date of nomination of the respondent and the date of declaration of the result the applicability of sub-section (3) of Section 77 would not be attractive.

J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.] 73 .... _:,. ; Pratipal Singh Bhindal has been examined as PW 48. In his statement without giving any dates he has simply stated that in his estimation about 1,50,000 posters like Al to A3 were pasted/exhibited in the constituency. One of the impugned poster does not refer to the respondent or to his activities in the constituency. As per explanation I appended to sub-section (I) of Section 77 any expenditure incurred or authorised by a political or by any other association or body of persons or by any independent other than the candidate or his election agent is not be counted as of expenditure by the candidate or his election agent attracting applicability of Section 77. The posters were distributed generally in the interest of the political party and its candidates highlighting the achievements of the political party and its leadership, the expenses could not be counted as the expenses as that incurred by the respondent.

Shri R. Bhardwaj, PW 43, the election observer had visited the election office of the respondent on 4.2.97. He had also taken into possession some election material in the shape of posters, stickers, pamphlets, small flags etc. (Exts. A/42 to A/49). In his estimation, about 60000 posters were pressed into service on behalf of the congress party and similar quantity was pasted by the appellant also. He has merely given an estimate of the quantity of posters and that too as made use of by Congress party. The respondent has in his own statement substantiated the plea taken in the written statement. Surinder Singh (RW 16), the proprietor ofM/s Satguru Printing Press has been examined on behalf of the respondc:nt who too has supported the statement of the respondent consistent with the plea taken in the written statement and has also proved the concerning vouchers.

In the above state of evidence no inference can· be drawn that the statement of expenses and the vouchers as filed by the respondent were false or that the expenditure incurred on the posters had resulted into crossing the prescribed limit of expenditure. We agree with the findings recorded by the learned Designated Election Judge that issue no. 7 is not proved.

Issue no 6 : Allegations as to undue influence? G Another corrupt practice amounting to undue influence as defined in section 123(2) of the Act argued and pressed at the time of hearing by the learned senior counsel for the appellant is found alleged in para I I of the election petition. The gist of the averment made is that one Sukhraj Singh '')- Sarpanch of village Natt was a strong supporter of the respondent. He H

74 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A accompanied by Ajaib Singh went to the houses of Pirthi Singh and Niranjan Singh. Only ladies were present at the houses. They were asked to remove the flags of Shiromani Akali Dal from their houses which the ladies refused to do whereupon Sukhraj Singh and Ajaib Singh gave merciless beating to the ladies, Smt. Amarjeet Kaur and Smt. Gyan Kaur. The ladies suffered B multiple injuries. The assailants forcibly removed the flags from their houses. The incident was reported to the police. The injured ladies were medically examined. The election observer also submitted his report on the incident to the Election Commission. The allegations have been denied in the written statement filed by the respondent. The respondent has denied having anything to do with Sukhraj Singh and Ajaib Singh. The learned Designated Election C Judge has extensively dealt with the evidence adduced by the parties and found the incident as to beating of the two ladies and removal of flags from their houses proved. The learned Judge has also found the involvement of Sarpanch Sukhraj Singh and Ajaib Singh also proved. However, the learned Judge has also recorded a finding that there was no iota of evidence to prove the respondent having at any time visited village Natt in order to shield the two persons involved in the incident. The learned Judge has also found that there was "sheer exaggeration" and "faint attempt" made by the appellant to connect the respondent with the incident. In the opinion of the learned Designated Election Judge the inciA:Jent appeared to be an outcome of the zeal of the Sarpanch Sukhraj Singh and the other person Ajaib Singh who did so of their own and was probably an act of over enthusiasm in politics but there was no reliable evidence not even any facts or circumstances to· infer the involvl'lment of the respondent in the incident or to hold the act of Sukhraj Singh and Ajaib Singh having been committed at the behest of the respondent. It is riot the case of the appellant that Sukhraj Singh or Ajaib Singh was an agent or election agent of the respondent. During the course of hearing nothing was brought to our notice so as to persuade us to interfere with the finding arrived at by the learned Designated Election Judge.

Under Sections 100 (l)(d)(ii) and 100(2)(a) of the Act any corrupt practice in order to vitiate the election of the returned candidate must be shown to have been committed either by the candidate or his election agent or by .an agent other than his election agent in the interest of the returned candidate. Further it should be shown that the result of the election insofar as it concerns.a returned candidate has been materially affected by the said corrupt practice. We have already stated that neither Sukhraj Singh nor Ajaib Singh has been shown much less proved to be agent of the respondent: There is fl no material brought on record to infer the result of the election having been -~

J.M. SINGH v. H.S. JASS! [R.C. LAHOTJ, J.] 75 materially affected by the beating of the two ladies. The appellant has been rightly held by the learned Designated Election Judge to have failed in making out a case for setting aside the election of the respondent on the ground of the said corrupt practice involving the beating of the two ladies. The learned counsel for the appellant submitted that Sukhraj Singh was later appointed as a counting agent by the respondent. Merely from this fact it cannot be inferred that the respondent was in the knowledge of the incident which had happened at village Natt and that he had condoned the act of Sukhraj Singh by appointing him as a counting agent and thereby owned the responsibility of the violence committed by Sukhraj Singh: In Manohar Joshi v. Nitin Bhaurao Patil and Anr., [1996] I SCC 169 this Court has held that the requisite consent of the returned candidate or his election agent is a constituent part of the corrupt practices under sub-section (3) and (3A) of Section 123 and an ingredient of the ground under Section lOO(l)(b). Such consent has to be pleaded and proved. Implied consent of the candidate cannot be read into the provision. Whenever the requirement is of consent, it must be free consent given by the giver of the consent of his own volition. It must be specifically alleged and positively proved. In the case at hand there are neither such pleadings nor proof as to the alleged violence having been committed by Sukhraj Singh and Ajaib Singh with the consent of the returned candidate or of his election agent.

We are clearly of the opinion that none of the findings arrived at by the learned Designated Election Judge negativing proof of allegi:d corrupt practices by the respondent is liable to be interfered with in this appeal. The findings are confirmed.

As an upshot of the above discussion, the appeal is held liable to be dismissed and is hereby dismissed with cost quantified at Rs. 10,000. F v.s.s. Appeal dismissed.