Full Judgment Text
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PETITIONER:
LOKNATH PADHAN
Vs.
RESPONDENT:
BIRENDRA KUMAR SAHU
DATE OF JUDGMENT16/01/1974
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
GOSWAMI, P.K.
CITATION:
1974 AIR 505 1974 SCR (3) 114
1974 SCC (1) 526
ACT:
Representation of the People Act (43 of 1951) s.
116A--Election Petition challenging respondent’s election to
State Legislative Assembly--Dismissed--Dissolution of
Assembly pending appeal to this Court--Effect on appeal.
HEADNOTE:
The appellant filed an election petition challenging the
election of the respondent to the State legislative Assembly
alleging that there was a substising contract, entered into
by the respondent in the course of his trade and business,
with the State Government, for the execution of works
undertaken by the Government, and that therefore he was
disqualified under s. 9A of the Representation of the People
Act, 1951. The High Court dismissed the petition holding
that the contracts were not undertaken by the respondent in
his individual capacity in the course of his trade and
business but were on behalf of the Gram Panchayat of which
he was the Naib Sarpanch, and also that the contracts bad
been. fully carried out by the respondent long before the
date of his nomination and that therefore, the Explanation
to s. 9A was applicable and took his case out of the
section. While the appeal was pending in this Court the
State Legislative Assembly was dissolved under Art.
174(2)(6) of the Constitution, The respondent raised the
preliminary objection at the hearing of the appeal that in
view of the dissolution of the assembly it was academic to
decide whether or not the respondent was disqualified under
the section.
HELD : The law relating to abatement of election petitions
is exhaustively dealt with in Chap. VI of Part IV of the
Act and since there is nothing in the Act ’which provides
for abatement of election petitions when the legislature is
dissolved the dissolution does not result in the abatement
of an election petition. But the question in the present
case is not whether the appeal has abated on the dissolution
of the State Assembly, but whether in view of the
dissolution of the State Assembly, it has become academic to
decide the appeal. In the instant case, even if it is found
that the respondent was disqualified under s. 9A it would
have no.’ practical consequence, because invalidation of his
election after the dissolution of the State Assembly, unlike
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the case of invalidation for corrupt practice, would have no
effect whatsoever. Therefore, the State Legislative
assembly having been dissolved during the Pendency of the
appeal it is now wholly academic to consider whether the
respondent was disqualified under s. 9A at the date of his
nomination and since that is the only ground on which the
election of the respondent is challanged it would be futile
to hear the appeal on merits. [117D-E; 120D]
Shedhan Singh v. Mahan Lal [1959] 3 S.C.R, 417, followed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 644 of 1972
From the judgment and order dated the 1st February 1972 of
the Orissa High Court in Election Petition No. 3 of 1971.
Gobind Das, and P. H. Parekh for the appellant.
Narayan Nettar, V.J. Francis and B. Kanta Rao, for the
respondent.
The Judgment of the Court was delivered by
BHAGWATI J.-This appeal is preferred under S. 116A of the
Representation of the People Act, 1951 (hereinafter referred
to as the Act) against the judgment of the Orissa High Court
dismissing an election petition filed by the appellant
challenging the election of the respondent to the Orissa
Legislative Assembly from Melchhamunda constituency in
Sambhalpur district of the State of Orissa.
115
The facts giving rise to the appeal may be briefly stated as
follows: There were general elections to the Orissa
Legislative Assembly sometimes in the beginning of March
1971. The last date for filing nomination papers was fixed
on 7th February, 1971 and on or before that date the
appellant and the respondent both filed their respective
nomination papers for the seat from Melchhamunda
constituency. On 9th February, 1971, which was the date
fixed for scrutiny of the nomination papers, the appellant
raised an objection against the nomination of the,
respondent on the ground that he was disqualified under s.
9A of the Act. Section 9A provides inter alia that 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 execution
of any works undertaken by that Government. There is an
explanation to this section which says that 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. The allegation of the
appellant was that the respondent had entered into five
contracts with the Government of Orissa for the execution of
works undertaken by that Government and these contracts were
still subsisting and the respondent was, therefore,
disqualified from contesting the election under s. 9A. This
objection raised on behalf of the appellant was overruled by
the Returning Officer and the nomination of the respondent
was accepted. The polling thereafter took place on 5th
March, 1971 and the respondent was declared elected on 11th
March, 1971. The appellant thereupon filed an election
petition in the High Court of Orissa calling in question the
election of the respondent on the ground that he was
disqualified from being elected as a member by reason of s.
9A. The case of the appellant, as laid down in the election
petition, was that, at the date of nomination five contracts
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were subsisting between the respondent and the Government of
Orissa in respect of the following works entrusted through
the Gaisilet Panchayat Samiti : (1) construction of the
Mahila Samiti building at Borumunda, (2) construction of
the community recreation centre at Borumunda,(3)construction
of the village level lady worker’s quarter at Borumunda, (4)
construction of a package village level worker’s quarter at
Gaisilet and (5) construction of the Borumunda canal, and on
account of the subsistance of these five contracts the
disqualification under s. 9A was attracted. Though the
appellant relied on subsistance of these five contracts in
the election petition, he conceded at the time of the
arguments that contracts (4) and (5) may not be taken into
account and rested his case solely on the ground that
contracts (1) to (3) were subsisting between the respondent
and the Government of Orissa. The respondent denied that he
bad entered into any of these contracts with the Government
of Orissa in the course of his trade or business or that any
such contract was subsisting between him and the Government
of Orissa at the date of nomination. The respondent alleged
that the work-. undertaken by him under contracts (1) to (3)
were part of the Second Five Year Plan and they were to be
carried out by the Grain Panchayat on the basis of 50 %
subsidy from the Government and 50% contribution by the
people in terms of money or labour and
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it was as leader of the people and Naib Sarpanch that he had
undertaken these works on behalf of the Gram Panchayat and
not in his individual capacity in course of his trade or
business. The contention of the respondent, therefore, was
that S. 9A had no application in his case. It was also
urged by the respondent that in any event these contracts
had been fully performed by him before the date of nomina-
tion and his case was, therefore, covered by the Explanation
to S. 9A. The respondent also contended in the alternative
that even if the stand taken by the Block Development
Officer on behalf of the Gaisilet Panchayat Samiti was
correct, namely, that the respondent had failed to carry out
his obligations under these contracts and the Government of
the Gaisilet Panchayat Samiti had, therefore, become
entitled to recover the amount advanced to the respondent
and for that purpose issued the requisitions for certificate
of recovery on 8th January, 1967, the case of the respondent
was outside s. 9A because in that event the contracts were
discharged by breach prior to 8th January, 1967 and were no
longer subsisting at the date of nomination. The High Court
trying the election petition took the view that the
contracts in question were not undertaken by the respondent
in his individual capacity in course of his trade or
business, but they were undertaken on behalf of the Gram
Panchayat in terms of the schemes envisaged in the Second
Five Year Plan as the respondent was the leader of the
people and Naib Sarpanch of the Gram Panchayat, and the dis-
qualification under s. 9A was, therefore, not attracted in
the case of the respondent. The High Court also held,
relying on the evidence .of two witnesses, that the
contracts had been fully carried out by the respondent long
before the date of nomination and the Explanation was,
therefore, applicable and that took the case of the
respondent out of the inhibition of S. 9A. The view taken
by the High Court thus was that the respondent was not
disqualified from contesting the election under s. 9A and on
this view the High Court dismissed the election petition.
Hence the present appeal under s. 116A of the Act.
Whilst the appeal was pending in this Court, the Orissa
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Legislative Assembly was dissolved by the Governor on 3rd
March, 1973 under Art. 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 aca-
demic to decide whether or not the respondent was
disqualified from being a candidate under s. 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 s. 9A, 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 thus preliminary contention
117
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.
Speaking of the House of Lords, Viscount Simon, L.C. said in
the course of his speech in Sun Life Assurance Co. of Canada
v. Jervis (1) I do not think that it would be a proper
exercise of the authority which this House possesses to hear
appeals if it occupies time in this case in deciding an
academic question, the answer to which cannot affect the
respondent ill any way’, and added : "-it is an essential
quality of an appeal fit to be disposed of by this House
that there should exist between the parties to a matter in
actual controversy which the House undertakes to decide as a
living issue". This statement must apply equally in case of
exercise of appellate jurisdiction by this Court. It would
be clearly futile and meaningless for the Court to decide an
academic question, the answer to which would not affect the
position of one party or the other. The Court would not
engage in a fruitless exercise. It would refuse to decide a
question, unless it has a bearing on some right or liability
in controversy between the parties. If the decision of a
question would be wholly ineffectual so far as the parties
are concerned, it would be not only unnecessary and
pointless but also inexpedient to decide it and the Court
would properly decline to do so. In the present case, the
Orissa Legislative Assembly being dissolved, it has become
academic to consider whether on the date when the nomination
was filed, the respondent was disqualified under s. 9A.
Even if it is found that he was so disqualified, it would
have no practical consequence, because’ the invalidation of
his election after the dissolution of the Orissa Legislative
Assembly would be meaningless and ineffectual. it would not
hurt him. The disqualification would only mean that he Was
not entitled to contest the election on the date when he
filed his nomination. It would have no consequences
operating in future. It is possible that the respondent had
a subsisting contract with the Government of Orissa at the
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date of nomination, but that contract may not be subsisting
now. The finding that the respondent was disqualified would
be based on the facts existing at the date of nomination and
it would have no relevance so far as the position at a
future point of time may be concerned, and therefore, in
view of the dissolution of the Orissa Legislative Assembly,
it would have no practical interest for either of the
parties. Neither would it benefit the appellant nor should
it affect the respondent in any practical sense and it would
be wholly academic to consider whether the respondent was
disqualified on the date of nomination.
The position might be different if the allegation against
the respondent were of corrupt practice. Then it would not
be academic to consider whether or not the respondent was
guilty of the corrupt practice charged against him, because
a finding of
(1) [1944] A. C. 111.
118
corrupt practice has serious consequences. If the
respondent is found guilty of corrupt practice during the
election, not only his election would be declared void, but
he would also incur certain electoral disqualifications.
Sec. 8A provides that a person found guilty of a corrupt
practice by an order under s.99 shall be disqualified for a
period of six years from the date on which, that order takes
effect. The purity of elections is of utmost importance in
a democratic set up and the law has, therefore, taken
serious note of practice in elections and laid down a
disqualification for a period of six years on an order being
made by the High Court recording a finding of corrupt
practice at the time of disposing of the election petition.
It is, therefore, obvious that when a corrupt practice is
charged against the respondent in an election petition, the
trial of the election petition must proceed to its logical
end and it should be determined whether the corrupt practice
was committed by the respondent or not., As pointed out by
this Court in Sheodhan Singh v. Mohan Lal (1) "no one can be
allowed to corrupt the course of an election and get away
with it either by resigning his membership or because of the
fortuitous circumstance of the assembly having been
dissolved. The public are interested in seeing that those
who had corrupted the course of an election are dealt with
in accordance with law." The decision of the question
whether corrupt practice was committed by the respondent or
not would not, therefore, be academic and the Court would
have to decide it, even if in the meantime the Legislature
is dissolved. That was precisely the view taken by this
Court in Sheodhan Singh v. Mohan Lal (1). In that case the
election of the respondent to the Uttar Pradesh Legislative
Assembly was challenged by the appellant in an election
petition on the ground that the respondent was guilty of
corrupt practice during the election. The Uttar Pradesh
Legislative Assembly was dissolved by the President during
the pendency of the election petition before the High Court
and a preliminary objection was, therefore, raised on behalf
of the respondent that the election petition had ceased to
be maintainable on account of the dissolution of the Uttar
Pradesh Legislative Assembly. The High Court rejected the
preliminary objection It on merits it took the view that
corrupt practice was not proved and accordingly dismissed
the election petition. The appellant thereupon preferred as
appeal to this Court and in the appeal also the same
preliminary objection was repeated on behalf of the
respondent. This Court negatived the preliminary objection.
Hegde, J., speaking on behalf of the Court emphasised that
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the charge against the respondent was of corrupt practice
and pointed out that if the creation of the appellant that
the respondent was guilty of corrupt practice was found to
be true, then not only his election would be declared void
but he would also be liable to incur certain sectoral
disqualification, and therefore, in the interest of purity
of elections it was necessary that "those who bad corrupted
the course of an election are dealt with in accordance with
law", and this purpose would stand defeated if the election
petition were held to become infructuous on the dissolution
of the Assembly. The learned Judge then proceeded to
consider the relevant elections of the Act and after
(1) [1959] 3 S.C.R. 417.
119
referring to them, summarised his conclusion by saying :
"From the above provisions it is seen that in an election
petition the contest is really between the constituency on
the one side and the person or persons complained of on the
other. Once the machinery of the Act is moved by a
candidate or an elector, the carriage of the case does not
entirely rest with the petitioner. The reason for the
elaborate provisions noticed by us earlier is to ensure to
the extent possible that the persons who offered the
election law are not allowed to avoid the consequences of
their misdeeds." It will be seen that the emphasis in this
decision was on the fact that the charge against the
respondent was of corrupt practice and it was in this
context that the Court held that where corrupt practices is
alleged against the respondent in an election petition, the
dissolution of the Legislature during the pendency of the
election petition does not render, it infructuous. We fail
to see how the ratio of this decision can have any
application in the present case. Here there is no charge of
any corrupt practice against the respondent. The only
ground on which the election of the respondent is sought to
be invalidated is that he was disqualified at the date of
nomination under s. 9A. This disqualification does not
involve any act corrupting the course of an election. It
has no other consequence than that of making the particular
election void. It does not entail any electoral
disqualification for the future. There is, therefore, no
analogy between the two situations and this decision cannot
be called in aid by the appellant.
The appellant, however, relied on the following observations
in this decision and contended that these observations
clearly lay down that an election petition does not become
infructuous on the dissolution of the Legislature and the
petitioner is entitled to have the decision of the Court
upon it, notwithstanding the dissolution of the Legislature:
"The election petitions in this country are solely regulated
by statutory provisions. Hence unless it is shown that some
statutory provision directly or by necessary implication
prescribes that the pending election petitions stand abated
because of the dissolution of the Assembly, the contention
of the respondent cannot be accepted".
"The law relating to withdrawal and abatement of election
petitions is exhaustively dealt with in Chapter IV of Part
VI of the Act. In deciding whether a petition has abated or
not we cannot travel outside the provision providing for the
dropping of an election petition for any reason other than
those mentioned therein. The act does not provide for the
abatement of an election petition either when the returned
candidate whose election is challenged resigns or when the
assembly is dissolved. As the law relating to abatements and
withdrawal is exhaustively dealt with in the Act itself no
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reliance can be placed on the provisions of the Civil
Procedure Code nor did the learned Counsel for the
respondent bring to our notice any provision in the Civil
Procedure Code under which the election petition can be held
to have abated"
120
We fail to see how these observations can be of any help to
the appellant. They deal with a totally different
contention than the one advanced before us. It may be noted
that in this case the charge against the respondent was of
corrupt practice and it could not, therefore, be
successfully urged on behalf of the respondent that the
decision of the question arising in the appeal had become
academic on the dissolution of the Uttar Pradesh Legislative
Assembly. The only contention which the respondent was,
therefore, left with and which he could possibly advance was
that an election petition must be held to abate on the
dissolution of, the Legislature and it was this contention
which was dealt with and negatived in these observations.
This Court pointed out that the law relating to abatement of
election petitions is exhaustively dealt with in Ch. IV of
Part VI of the Act and since there is nothing in the Act
which provides for abatement of an election petition when
the Legislature is dissolved, it must be held that the
dissolution of the Legislature does not result in abatement
of the election petition. We express our whole hearted
concurrence with this view. But the question before us is
not whether the appeal in the present case abated on the
dissolution of the Orissa Legislative Assembly. That is not
the contention raised on behalf of the respondent. The
respondent does not say that the appeal has abated and must,
therefore, be dismissed. What the respondent contends is
that in view of the dissolution of the Orissa Legislative
Assembly, it has become academic to decide the appeal and
hence we should decline to hear it. That is a wholly
different contention which is not covered by the
observations quoted above. We do not, therefore, think this
decision throws any light on the contention raised before
us. It does not compel us to take a different view from the
one we are inclined to take on principle.
We are, therefore, of the view that, the Orissa Legislative
Assembly being dissolved during the pendency of this appeal,
it is now wholly academic to consider whether the respondent
was disqualified under s. 9A at the date of nomination and
since that is the only ground on which election of the
respondent is challenged, we think it would be futile to
hear this appeal on merits. We accordingly dismiss the
appeal with no orders as to costs all throughout.
V.P.S. Appeal dismissed,
121