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2000 DIGILAW 1383 (PNJ)

Rattan Lal v. Ram Chander Bainda

2000-11-15

JAGDISH SINGH KHEHAR

body2000
JUDGMENT J.S. Khehar, J - Rattan Lal has filed this petition under the Representation of the People Act, 1951 (hereinafter referred to as "the Act") for declaring the election of Ram Chander Bainda from the Faridabad Parliamentary Constituency as void. 2. Elections to the 13th Lok Sabha were held in 1999. The last date for filing of nomination forms was 18.8.1999. Scrutiny thereof was scheduled for 19.8.1999. The date for withdrawal of nominations and for allotment of symbols to the contestants was 21.8.1999. Polling was scheduled for 4.9.1999. 3. The result of the polling, was declared on 6.9.1999. Ram Chander Bainda, respondent, got the maximum votes and as such was declared elected on 6.10.1999, to the 13th Lok Sabha from the Faridabad Parliamentary Constituency. 4. The petitioner claims that he being a voter in 52 Mewla Maharajpur Assembly Segment of 6 Faridabad Parliamentary Constituency at Serial No. 357 in the voters list, has the right to challenge the election of the respondent under the provisions of the Representation of the People Act, 1951. He has filed the instant election petition under Section 81 of the 1951 Act within the period of limitation. 5. The election of the respondent is sought to be challenged on the solitary ground that the respondent is disqualified to be a candidate for election in view of Section 9-A of the 1951 Act. Section 9-A is extracted hereunder : "9A. Disqualification for Government contracts, etc. - A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government. Explanation - For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part." 6. Factually it is claimed that the respondent was holding a subsisting contract with the "appropriate Government" which was subsisting at the time when the election in which he participated was conducted. Factually it is claimed that the respondent was holding a subsisting contract with the "appropriate Government" which was subsisting at the time when the election in which he participated was conducted. In this behalf, it is pointed out that the respondent had entered into a contract on 16.7.1993 for 10 days years with effect from 5.8.1993. The said contract was between the respondent and the "appropriate government" i.e. the Central Government. The aforesaid contract was to last upto 4.8.2003. Thus, not only at the time of acceptance of the nomination papers but also at the time of scrutiny thereof and even at the time when the result of the election was declared, the respondent was having a subsisting contract with the "appropriate Government" and as such was deriving financial benefits from the "appropriate Government" which disqualified him from contesting the General Election to the 13th Lok Sabha. 7. In paragraph 4 of the Election Petition, the details of the contract are also specified. It has been pointed out by the petitioner that the contract executed on 16.7.1993 was for extraction of silica sand, a major mineral, from within the Revenue estates of village Gothda Mohatabad over a total area of 296 hectares. The contract is stated to have been executed under the Mines and Minerals (Regulation and Development) Act, 1957. Under the said contract, it is asserted that the respondent being a lease holder for excavation/extraction of minerals he was drawing financial benefits from the Government, and as such, was disqualified under the provisions of Section 9-A of the 1951 Act from contesting the said election. 8. Consequent upon issuance of notice in the Election Petition, Ram Chander Bainda respondent, has filed a detailed written statement raising a number of preliminary objections. In the written statement it is claimed that the petition is barred by the principles of res judicata. In this behalf, it is contended that prior to the present electoral process, elections were held in 1998. During the course of the said elections, the petitioner had raised the same plea, against the respondent. In this behalf, it is asserted that the petitioner had raised objections to the candidature of the respondent on the said earlier occasion even at the time of the scrutiny of nomination papers. The Returning Officer had, however, rejected the claim of the petitioner by a detailed order dated 29.1.1998. In this behalf, it is asserted that the petitioner had raised objections to the candidature of the respondent on the said earlier occasion even at the time of the scrutiny of nomination papers. The Returning Officer had, however, rejected the claim of the petitioner by a detailed order dated 29.1.1998. Thereafter, the petitioner had filed an election petition titled as Rattan Lal v. Ram Chander Bainda (Election Petition No. 1 of 1998). The said election petition filed by the petitioner against the respondent is stated to have failed. It is the case of the respondent on the basis of the aforesaid facts that the claim of the petitioner having been rejected on the same ground on an earlier occasion, he was debarred in law from preferring the present petition. 9. It is further the case of the respondent that even if the assertions made by the petitioner are taken as correct, the respondent cannot be considered to be disqualified for contesting the election in terms of the provisions of Section 9A of the 1951 Act. In continuation of the aforesaid objection, it is stated that the election petition itself does not disclose any cause of action as the material facts which could establish the disqualification of the respondent have not been disclosed in the election petition. In this behalf, it is pointed out that there are no allegations in the election petition that there is a subsisting contract with the "appropriate Government" in terms of provisions of Section 9A of the 1951 Act. Only a subsisting contract with the Central Government would have the effect of disqualifying the petitioner. It is stated that the respondent has no contract either for the supply of goods to the Central Government or for the execution of a work for the Central Government and, therefore, there is no question of the respondent being disqualified under Section 9-A of the 1951 Act. 10. The pleas raised by Ram Chander Bainda in the written statement have been controverted in the replication filed by the petitioner. 11. The learned counsel for the parties agreed that the following issues should be framed as preliminary issues :- 1. Whether the petition is barred by the principles of res judicata ? 2. Whether the petition discloses no cause of action and as such the same is not maintainable ? 3. 11. The learned counsel for the parties agreed that the following issues should be framed as preliminary issues :- 1. Whether the petition is barred by the principles of res judicata ? 2. Whether the petition discloses no cause of action and as such the same is not maintainable ? 3. Whether the petitioner has not pleaded sufficient material facts in the petition ? 4. Whether the allegations levelled in the petition show no violation of section 9A of the Representation of People Act, 1951 ? If so, its effect ? 5. Whether the petition has not been verified as per law ? If so, its effect ? 6. Relief. 12. Accordingly, the aforesaid preliminary issues were framed on 28.4.2000. Learned counsel for the parties affirmed that it was not necessary to lead evidence on the aforesaid preliminary issues. Consequently, without recording any evidence, arguments were heard on the preliminary issues. 13. During the course of arguments, it was first submitted by the learned counsel for the respondent that the expression "appropriate Government" purported in Section 9A of the 1951 Act is the Central Government, (in so far as the present controversy is concerned, reliance in this behalf was placed on Section 7(a) of 1951 Act; the same is extracted hereunder :- "7. Definitions - In this Chapter - (a) "appropriate Government" means in relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and the relation to any disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative Council of the State, the State Government;" Since the elections in the instant case were for the Lok Sabha, it is obvious that the reference to "appropriate Government" in Section 9A of the 1951 Act was indeed reference to the Central Government. 14. 14. Learned counsel for the petitioner, drew the pointed attention of this Court to paragraph 4(A) of the election petition which is extracted hereunder :- "(A) That respondent, returned candidate, was disqualified to be a candidate for election as provided under section 9-A of the Representation of People Act, 1951 since respondent was admittedly having a subsisting contract entered into by respondent with the appropriate Government in the course of his trade and business." On the basis of the pleading in paragraph 4(A) it is asserted that the petitioner has not disclosed the Government (Central or State) with which the respondent had a subsisting contract at the relevant time. It is submitted by the learned counsel for the respondent that it was incumbent upon the petitioner to specify that the contract in question had actually been executed by the respondent with the Central Government. Since it has not so been specifically mentioned, the pleadings must be construed to be incomplete and defective and must be deemed to be bereft of material particulars for establishing the respondentss disqualification under Section 9A of the 1951 Act. 15. So far as the aforesaid submission is concerned, the learned counsel for the petitioner drew the pointed attention of this Court to the averments made in paragraph 4-B of the election petition wherein it is mentioned as under :- "... Thus at the time of acceptance of the nomination papers and scrutiny, respondent was holding a contract/lease and was as such deriving benefits out of the lease contract entered into with the appropriate government i.e. the Central Government as provided under the Mines and Minerals (Regulation and Development) Act, 1957 was, therefore, disqualified to be a candidate for the said Parliamentary constituency being a contractor/lease holder of the Government as provided under Section 9-A of the Representation of the People Act, 1951." 16. I do not find much substance in the first contention of the learned counsel for the respondent. A careful perusal of paragraph 4B of the pleadings in the election petition indeed reveals that it is specifically asserted that there was a subsisting contract with the Central Government. Accordingly, the first contention of the learned counsel for the respondent is devoid of any merit and is declined. 17. The second plea raised on behalf of the respondent is that the present petition is barred by the principles of res judicata. Accordingly, the first contention of the learned counsel for the respondent is devoid of any merit and is declined. 17. The second plea raised on behalf of the respondent is that the present petition is barred by the principles of res judicata. In this behalf, it is alleged that even on an earlier occasion when the respondent contested the elections in 1998, objections were preferred by the petitioner at the time of scrutiny of the nomination forms. The objection raised by the petitioner at the said juncture was identical to the objection raised in the present election petition. The aforesaid objection was, however, rejected by the Returning Officer by passing a detailed order dated 29.1.1998. Dissatisfied with the order of the Returning Officer, the petitioner had preferred an election petition, titled as Rattan Lal v. Ram Chander Bainda (Election Petition No. 1 of 1998), which was dismissed by this Court vide its order dated 17.5.1999. On the aforesaid factual matrix, the submission of the learned counsel for the respondent is that the issues raised in the instant petition have been finally adjudicated between the parties inter se by this Court vide order dated 17.5.1999 and as such, this petition is not maintainable and indeed is a misuse of the process of the Court. 18. The second ground raised by the learned counsel for the respondent is vehemently contested on behalf of the petitioner. In this behalf, it is pointed out that the earlier election petition filed by the petitioner, had been rendered infructuous by the dissolution of the Parliament. It is specifically submitted that the aforesaid decision of this Court dated 17.5.1999 was not rendered on merits. In this behalf, the learned counsel for the petitioner has also placed reliance on the decision rendered by the Apex Court in Loknath Padhan v. Birendra Kumar Sahu, AIR 1974 S.C. 505. Attention of this Court was invited to the following observations and conclusions of the apex Court :- "3. Whilst the appeal was pending in this Court, the Orissa Legislative Assembly was dissolved by the Governor on 3rd March, 1973 under Article 174(2)(b) of the Constitution. Attention of this Court was invited to the following observations and conclusions of the apex Court :- "3. Whilst the appeal was pending in this Court, the Orissa Legislative Assembly was dissolved by the Governor on 3rd March, 1973 under Article 174(2)(b) of the Constitution. The respondent, therefore, raised a preliminary objection at the hearing of the appeal before us that in view of the dissolution of the Orissa Legislative Assembly, it was academic to decide whether or not the respondent was disqualified from being a candidate under Section 9A and we should accordingly decline to hear the appeal on merits. The argument of the respondent was that unless there is a living issue between the parties, the Court would not proceed to decide it; it would not occupy its time by deciding what is purely an academic question which has no sequitur so far as the position of the parties is concerned. Here, contended the respondent, even if the appellant was able to satisfy the Court that on the date of the nomination, the respondent was disqualified under Section 9-A, it would be a futile exercise, because the Orissa Legislative Assembly being dissolved, the setting aside of the election of the respondent would have no meaning or consequence and hence the Court should refuse to embark on a discussion of the merits of the question arising in the appeal. We think there is great force in this preliminary contention urged on behalf of the respondent. It is a well settled practice recognised and followed in India as well as England that a Court should not undertake to decide an issue unless it is a living issue between the parties. If an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties it would be waste of public time and indeed not proper exercise of authority for the Court to engage itself in deciding it." 19. In view of the clear enunciation of law and in view of the fact that it is not disputed before me that the earlier election petition had become infructuous after dissolution of the parliament, I find no substance even in the second ground to attack at the behest of the learned counsel for the respondent. 20. In view of the clear enunciation of law and in view of the fact that it is not disputed before me that the earlier election petition had become infructuous after dissolution of the parliament, I find no substance even in the second ground to attack at the behest of the learned counsel for the respondent. 20. It is next contended by the learned counsel for the respondent that even if the assertions made by the petitioner are accepted at their face value, the respondent cannot be considered to be disqualified under Section 9A of the 1951 Act. In this behalf, it is pointed out that the alleged contract which is stated to have executed on 16.7.1993 is in respect of the grant of lease in favour of the respondent, under the Mines and Minerals (Regulation and Development) Act, 1957 for the purposes of excavation/extraction of silica sand, a major mineral. On the basis of the alleged lease it is asserted that the respondent is deriving financial benefits from the appropriate government i.e. the Central Government and is thus disqualified from being a candidate in the said parliamentary election. 21. The question to be answered is, whether the totality of the allegations levelled by the petitioner in respect of subsisting contract between the respondent and the "appropriate Government" i.e. the Central Government would render the respondent disqualified for participating in the electoral possess as a candidate. Section 9A has been extracted above, its persual shows that to be disqualified, the contract must be for supply of goods to the "appropriate Government" or for execution of works for the "appropriate Government". It is emphasised that the alleged lease stated to have been executed between the respondent and the appropriate government i.e. the Central Government is neither for the supply of goods nor for the execution of works and thus the alleged subsisting contract between the respondent and the "appropriate Government" i.e. the central government, for excavation/extraction of silica sand, a major mineral cannot be considered to fall within the ambit of this disqualification stipulated in section 9A of the 1951 Act. 22. To substantiate the aforesaid plea, the learned counsel for the respondent placed reliance on the decision rendered by the Andhra Pradesh High Court In B. Lakshmikantha Rao v. D. Chinna Mallaiah and others, AIR 1979 Andhra Pradesh 132. 22. To substantiate the aforesaid plea, the learned counsel for the respondent placed reliance on the decision rendered by the Andhra Pradesh High Court In B. Lakshmikantha Rao v. D. Chinna Mallaiah and others, AIR 1979 Andhra Pradesh 132. In the aforesaid case, there was an agreement between the returned candidate i.e. the respondent and the government in respect of carrying on business in arrack and toddy. Under the aforesaid contract, the respondent had deposited monthly rent and purchased arrack from the government at the issue price and had the right to sell the same to the public. Similarly, he was granted the lease to sell the toddy to the public by paying tree tax to the government. On the basis the aforesaid of two contracts with the "appropriate Government" for the sale of arrack and toddy, it was claimed that the respondent was disqualified to contest the election under Section 9A of the 1951 Act. The aforesaid contention was rejected by the Andhra Pradesh High Court by holding as under :- "...The contracts entered into by the Ist respondent with the State Government to sell toddy and arrack do not come within the mischief of Section 9-A as they are neither for supply of goods to the government nor for the execution of any works undertaken by the government and consequently the Ist respondent does not suffer from any disqualification for being chosen as a Member of the Legislative Assembly." 23. Learned counsel for the respondent has further submitted that the aforesaid decision rendered by the Andhra Pradesh High Court was affirmed by the Honble Supreme Court in Dewan Joynal v. Abdul Wazed, 1988 Supp. SCC 580 wherein the Apex Court observed as under :- "An analysis of Section 9-A of the Act shows that only in two cases a person would be disqualified if he has entered into a contract with the appropriate government in the course of his trade or business which is subsisting on the date of scrutiny of nomination. They are (i) when the contract is for supply of goods to the appropriate Government, and (ii) where the contract is for the execution of any works undertaken by that Government." The aforesaid legal position has also been recently reiterated by the Honble Supreme Court in Ranjeet Singh v. Harmohinder Singh Pradhan, (1999) 4 SCC 517. 24. They are (i) when the contract is for supply of goods to the appropriate Government, and (ii) where the contract is for the execution of any works undertaken by that Government." The aforesaid legal position has also been recently reiterated by the Honble Supreme Court in Ranjeet Singh v. Harmohinder Singh Pradhan, (1999) 4 SCC 517. 24. I have considered the aforesaid submission and find force in the same. The alleged subsisting contract between the respondent and the "appropriate Government" i.e. the Central Government is said to be for the excavation/extraction of silica sand, a major mineral, on the basis of which the respondent is allegedly deriving financial benefits from the "appropriate Government" i.e. the Central Government. The aforesaid factual position does not lead to the conclusion that the respondent either has a subsisting contract for supplying of goods to the Central Government or has a subsisting contract for execution of works for the said government. Thus viewed, even if the pleadings in the election petition are accepted in toto, the respondent would not stand disqualified on the execution of the alleged contract by him. Accordingly, I have no hesitation to hold that the petition does not disclose any cause of action on the basis of which the respondents election can be set aside on account of disqualification envisaged under Section 9-A of the 1951 Act. 25. Issues Nos. 2, 3 and 4 of the preliminary issues are accordingly decided in favour of the respondent by holding that the petition does not disclose any cause of action and/or sufficient material to annul the election of the respondent under Section 9A of the Representation of People Act, 1951. This petition must, therefore, fail and is accordingly dismissed. No costs. Petition dismissed.