Judgment

FAZAL ALI, J.:- This election appeal is directed against a judgment dated May 15, 1979 of the Gauhati High Court by which the High Court accepted the election petition filed by the petitioner Aju Newmai and set aside the election of the appellant, N. C. Zeliang who had been declared elected from the No. 6 Tening Assembly Constituency of the State of Nagaland. For short, the respondent No. 1, namely, the election petitioner in the High Court, shall be hereinafter referred to as the petitioner and N. C. Zeliang, who won the election, as the appellant.

2. The elections were held in the year 1977 and were contested by the petitioner, the appellant and others. The appellant contested the election as a Congress candidate with the symbol of cow and a calf, whereas the petitioner contested on the ticket of the United Democratic Front (U. D. F.) whose election symbol was Cock. The other candidates in the field were Jangkhosei and Paokholun. We are, however, not concerned with these candidates. It appears that the appellant polled 2224 votes as against the 2207 votes polled by the petitioner and thus defeated the petitioner by a margin of 17 votes, the total votes in the constituency being only 5,000. The poll took place on 18-11-1977 and the last date for filing the nomination paper was 24-10-1977.

3. Being aggrieved by the declaration of the appellant as having been duly elected to the Assembly, the petitioner filed an election petition on 5-1-1978 in the High Court challenging the election of the appellant on several grounds including the allegation that he had filed a false return of the expenses and had incurred much more expenses than fixed by the authorities concerned. The petitioner also alleged a number of other corrupt practices which had been committed by the appellant in the course of the election.

4. The appellant in his written statement strongly refuted all the allegations made by the petitioner and submitted that he had committed no corrupt practice and that the return which he had filed to the District Election Officer was absolutely correct and the expenses incurred by him were well below the permissible limit.

5. A large number of issues were framed by the High Court but the High Court appears to have accepted the election petition only on one issue, viz., issue No. 4. which related to the corrupt practice as contemplated by Section 123 (6) of the Representation of the People Act (hereinafter referred to as the Act) in incurring the expenditure exceeding the permissible limit which amounted to a contravention of Section 77 of the Act. The other allegations made by the petitioner were held by the High Court as not proved.

6. The learned counsel for the petitioner, who argued his case with tenacity and ingenuity, was unable to support the allegation made by the petitioner on any other issue framed by the court except issues Nos. 4 and 5. As the pivotal controversy in the instant case rests on issue No. 4, we would like to take up the finding of the High Court on this issue first. Issue No. 4, as framed by the High Court, may be extracted as follows:-

"Whether the respondent No. 1 committed corrupt practice, as defined under Section 123 (6) of the Representation of the People Act, 1951, by incurring or authorising expenditure exceeding the permissible amount, in contravention of Section 77 of the said Act, as alleged in paragraphs 10, 11 Ground No. (II) and Schedule B to the petition?

If so, is the election of respondent No. 1 liable to be set aside?"

This issue was based on the plea taken by the petitioner in paragraph 10 and ground No. II as also Schedule B to the petition and it may be necessary to traverse the allegations made by the petitioner regarding this issue. Paragraph 10 appears to be an omnibus statement which contains a number of grounds including the question of incurring unauthorised expenditure with which alone we are concerned for the present, and may be extracted thus :-

"That the petitioner also state