Full Judgment Text
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PETITIONER:
DEWAN JOYNAL ABEDIN
Vs.
RESPONDENT:
ABDUL WAZED ALIAS ABDUL WAZAD MIAH AND TWO OTHERS.
DATE OF JUDGMENT11/12/1987
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
SINGH, K.N. (J)
CITATION:
JT 1987 (4) 642 1987 SCALE (2)1447
ACT:
Representation of the People Act,1951: Section 9-A-
Election-Disqualification on account of Government contract-
Lease of ferry tolls under Sec. 8 of Northern India Ferries
Act, 1878-Whether such contract an agreement for execution
of works-Whether amounts to office of profit.
Northern India Ferries Act, 1878: Section 8-
’Contractor’-Acquiring lease under Act-Nature of contract-
Whether a works contract-Whether contractor holds ’office of
profit’-Whether disentitled under the Representation of the
People Act to stand for and contest an election to the House
of People or the State Assembly.
HEADNOTE:
%
The first respondent filed an election petition before
the High Court for setting aside the election of the
appellant to the State Legislative Assembly under s.
100(1)(c) of the Representation of the People Act, 1951,
contending that the rejection of his nomination papers by
the Returning officer was erroneous as he had, in fact,
completed 25 years of age on the date of his nomination.
The petition was opposed by the appellant contending
that as the first respondent had not completed 25 years of
age on the date of scrutiny of nominations, the nomination
papers had been rightly rejected, that as the first
respondent had not subscribed the oath as required by Art.
173(a) of the Constitution, he was not qualified to contest
the election, and that the first respondent was also
disqualified to be chosen to fill a seat in the Legislature
of the State, as on the date of scrutiny of the nominations
he had a subsisting contract entered into by him with the
Government, under which he had been treated as a lessee of
the Ferry for the period between 1.4.85 to 31.3.86.
The High Court framed issues on the basis of pleas
raised by parties and, after recording their evidence held
that the first respondent had completed the age of 25 years
on the date of scrutiny and, therefore, had necessary
qualification for being a member of the Legislative
371
Assembly, that the appellant had not proved that the first
respondent had not subscribed the oath as required by law,
and that as the first respondent had been relieved from the
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charge of the Government ferry with effect from 21.11.85,
there was no subsisting contract between the first
respondent and the Government on the date of scrutiny of
nominations and, therefore, he was not disqualified under s.
9-A of the Act. It accordingly came to the conclusion that
the rejection of the nomination papers filed on behalf of
the first respondent was improper and set aside the election
of the appellant.
In the appeal before this Court, a further plea was
raised on behalf of the appellant that the first respondent
was also disqualified from contesting the elections as he
held an office of profit under the State Government by
virtue of the contract entered into by him with the State
Government, even though the contract in question may not be
one of those contracts specified in s. 9-A of the Act.
Dismissing the appeal,
^
HELD: 1. The first respondent was not disqualified for
being chosen as a member of the State Legislature. The
rejection of his nomination papers was improper. The
election of the appellant was, therefore, rightly set aside
by the High Court, on the ground mentioned in Section
100(1)(c) of the Representation of the People Act 1951.
[387G-H]
2.1 An analysis of s. 9-A of the Representation of the
People Act, 1951 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 (1) when the contract is one for supply
of goods to the appropriate Government and (2) where the
contract is for execution of any works undertaken by that
Government. Unless the contract in question is one which
clearly falls under s. 9-A of the Act it cannot be held that
the person who is a party to the contract is disqualified
for being chosen as a member of the State Legislature.[382F-
G]
In the instant case, the contract is not one for supply
of goods to Government. The first respondent had acquired in
the public auction the right to collect the toll by paying
the amount offered by him under the contract and had not
undertaken any contract for execution of any works
undertaken by the Government. When a person acquires a right
to collect toll at a public ferry under s. 8 of the Ferries
Act. it cannot be
372
held that he is performing a contract for execution of works
undertaken by the Government. [385D, G-H]
Merely because under one of the conditions of the Form
of lease prescribed under the Ferries Act, the lessee is
under an obligation during the period of lease to mark buoys
or in any other suitable manner all submerged obstructions
or dangerous rocks in the rivers within half a mile of the
landing ghats, and shall be held responsible for any loss or
damage caused to the marboats striking against such
submerged obstructions or dangerous rocks it cannot be held
that the first respondent had undertaken to execute works
undertaken by the Government. [386B-C]
Having regard to the conditions in the lease and the
provisions of the Ferries Act and the rules made thereunder
the activity undertaken by the lessee under the agreement
cannot be considered as an agreement for execution of works
undertaken by the State Government and, therefore, the
contract, which the first respondent had entered into with
the State Government, even though it was subsisting on the
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date of the scrutiny of nominations, would not have the
effect of disqualifying him for being chosen as a member of
the State Legislative Assembly, since s. 9-A of the
Representation of the People Act, 1951 is not at all
attracted to such a case. [386D-E]
B. Lakshmikantha Rao v. D. Chinna Mallaiah and others,
A.I.R. 1979 A.P. 132 approved.
N. Satyanathan v. K. Subramanyan and others, [1955] 2
S.C.R. 83 explained.
Ram Padarath Mahto v. Mishri Singh & Anr., [1961] 2
S.C.R. 470. referred to.
2.2 A lessee of tolls under the Ferries Act is only a
contractor who under the lease acquires the right to collect
whatever toll is paid by persons who use the ferry against
payment to Government in advance whatever amount he has
agreed to pay at the time of auction. Whether he makes any
profit in that business or not depends ultimately on the
amount of toll he is able to realise during the whole period
of lease. Such a contract is essentially in the nature of a
business. It cannot be termed as an office in any sense. A
transaction of lease under the Ferries Act is not a lease of
an office. The first respondent was, therefore, not holding
an office of profit when he was a lessee under the Ferries
Act just like an
373
Excise Contractor or a fair price shop dealer who sells
grains supplied by Government is not such a holder of office
of profit.[386H; 387A-B, F]
State of Uttar Pradesh v. Satya Narain Prasad, [1970] 3
S.C.R. 198, referred to.
2.3 The High Court was right in upholding, on the basis
of the evidence of the three witnesses examined by the first
respondent and the electoral roll and the High School
Leaving Certificate, that the first respondent was more than
25 years of age on the date of scrutiny and was thus
eligible to be a member of a Legislative Assembly. [377D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4 (NCE)
of 1987.
From the Judgment and order dated 2.12.1986 of the High
Court of Gauhati in Election Petition No. 2 of 1986.
Govind Mukhoty, Anil Nauriya and Mrs. Rekha Pandey for
the Appellant.
Miss Halida Khatoon, Abdul Sattar and R.C. Kaushik for
the Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. This appeal is filed by the appellant
Dewan Joynal Abedin against the judgment dated December 2,
1986 of the High Court at Gauhati setting aside his election
to the Legislative Assembly of Assam at the election held on
the 16th December, 1985 from the 22-Salmara South
Legislative Assembly Constituency on an election petition
filed by respondent No. 1 Abdul Wazed alias Abdul Wazed Miah
in Election Petition No. 2 of 1986.
The last date for making nominations for election from
the aforesaid constituency was 22nd November, 1985 and the
date for the scrutiny of nominations was November 23, 1985.
The appellant, the Ist respondent and the second respondent
Bazlul Basit were the three candidates on whose behalf
nomination papers had been filed before the expiry of the
time fixed for making nominations. Respondent No. 3, M.
Bhattacharjee, was the Returning officer. At the time of the
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scrutirly respondent no. 2 raised objection to the
nomination of respondent No. 1 on the ground that respondent
No. 1 had not comp-
374
leted 25 years of age on the date of scrutiny as required by
Article 173(b) of the Constitution which provided that a
person was not qualified to be chosen to fill a seat in the
Legislature of a State unless he was in the case of a seat
in the Legislative Assembly not less than twenty-five years
of age and in the case of seat in the Legislative Council
not less than thirty years of age. The proposer of one of
the nomination papers filed on behalf of the respondent No.
1 prayed for some time to refute the objection. The
Returning officer, however, proceeded to reject the
nomination papers filed on behalf of the Ist respondent on
23.11.1985 holding that the Ist respondent had not completed
25 years of age and therefore was not qualified to be a
member of the Legislative Assembly. The election process
continued with only the appellant and the second respondent
as the candidates and after the poll the appellant was
declared as having been elected on the basis of the larger
number of votes secured by him. Thereupon the Ist respondent
filed the election petition before the High Court out of
which this appeal arises contending that he had infact
completed 25 years of age on the date of his nomination and
that the rejection of his nomination papers was erroneous.
The Ist respondent further contended that on account of the
rejection of his nomination papers the election of the
appellant was liable to be set aside under section 100(1)(c)
of the Representation of the People Act, 1951 (hereinafter
referred to as ’the Act’) which provided that the election
of a successful candidate was liable to be set aside on the
ground that any nomination had been improperly rejected. In
the course of his written statement the appellant raised
several pleas, and of them three were material for purposes
of this case. First he pleaded that the Ist respondent had
not completed 25 years of age on the date of scrutiny of
nominations and therefore the nomination papers had been
rightly rejected, secondly he pleaded that the Ist
respondent had not subscribed an oath as required by Article
173(a) of the Constitution and therefore the Ist respondent
was not qualified to contest the election and thirdly he
pleaded that the Ist respondent was also disqualified to be
chosen to fill a seat in the Legislature of the State as on
the date of scrutiny of the nominations the Ist respondent
had a subsisting contract entered into by him with the
Government on Assam under which he had been treated as a
lessee of the Phulbari Ghat Ferry for the period between
1.4.1985 and 31.3.1986. The Ist respondent pleaded that he
had completed the age of twenty-five years on the date of
scrutiny of nomination that he had subscribed an oath as
required by Article 173(a) of the Constitution and that
while it was true that he had entered into such a contract
he had been released from the said contract on 21.11.1985 by
the Executive Engineer concerned and therefore there was no
subsisting
375
contract between him and the Government of Assam on the date
of A scrutiny. On the basis of these pleas Issue No. S and
Issue No. 6 were framed by the High Court which read as
follows:
5. Whether the nomination paper of the
petitioner has been improperly rejected? If so,
whether the election of the respondent is void?
or,
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Whether the nomination paper of the petitioner was
liable to be rejected as alleged in para 7 of the
written statement?
6. Whether the petitioner had incurred
disqualification under section 9A of the
Representation of the People Act?
After recording the evidence produced by the parties
the learned Judge of the High Court who tried the election
petition held that the Ist respondent had completed the age
of 25 years on the date of scrutiny and therefore he had the
necessary qualification for being a member of the
Legislative Assembly. He accordingly held on the first part
of issue No. S in favour of the Ist respondent. On the
second part of issue No. S the learned Judge held that the
appellant had not proved that the Ist Respondent had not
subscribed on oath as required by law. On issue No. 6 the
learned Judge held that the. Ist respondent had been
relieved from the charge of Phulbari Ghat Ferry with effect
from 21. 11. 1985 and therefore there was no subsisting
contract between the Ist respondent and the Government of
Assam on the date of scrutiny of nominations and therefore
the Ist respondent was not disqualified under section 9-A of
the act. In view of his findings recorded on Issues Nos. 5
and 6 the learned Judge came to the conclusion that the
rejection of the nomination papers filed on behalf of the
Ist respondent was improper and therefore the election was
liable to be set aside. He accordingly set aside the
election of the appellant. Aggrieved by the judgment of the
learned Judge the appellant has filed this appeal under
section 116-A of the Act.
When this appeal was taken up for hearing on the first
date it was noticed that the High Court had not considered
the question whether section 9-A of the Act was attracted at
all to the contract in question as it appeared to be not one
of those contracts which had the effect of disqualifying a
candidate under section 9-A of the Act. The case thereafter
was adjourned to a subsequent date for hearing to enable the
learned counsel to make their submissions on the above
question also. By the next date of hearing the appellant
filed a petition before the
376
Court seeking an amendment of the written statement raising
the plea that the Ist respondent was also disqualified from
contesting the election as he held an office of profit under
the State Government by virtue of the contract that had been
entered into by him with the State Government even though
the contract in question may not be one of those contracts
specified in section 9-A of the Act. In other words it was
contended that the Ist respondent was disqualified under
Article 191(1)(a) of the Constitution which provided that a
person would be disqualified for being chosen as, and for
being, a member of the Legislative Assembly of a State if he
held any office of profit under the Government of India or
the Government of any State specified in the First Schedule,
other than an office declared by the Legislature of the
State by law not to disqualify its holder.
It is necessary to refer to one aspect of the case.
Although before the High Court it was urged by the appellant
that the Ist respondent had not subscribed on oath in
compliance with the provisions of Article 173 of the
Constitution and thus he was not eligible to contest the t)
election and that the High Court had negatived the said
contention, no arguments were addressed before us by the
learned counsel for the appellant questioning the finding of
the High Court on the above question. We do not, therefore,
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find it necessary to discuss the evidence relating to the
above issue.
Three questions arise for consideration in this appeal:
(i) whether the 1st respondent had not completed the age of
25 years on the last date for filing nomination?; (ii)
whether the contract in question said to have been entered
into by the Ist respondent with the Government of Assam to
collect the toll at the ferry was a contract for the
execution of any works undertaken by the Government of Assam
attracting section 9-A of the Act and if so whether the said
contract was subsisting on the date of scrutiny of
nomination?; and (iii) whether the Ist respondent held an
office of profit under the Government of Assam by virtue of
being a lessee of the right to collect the toll at the
ferry?
on the question of the age of the Ist respondent there
is practically no evidence adduced on behalf of the
appellant. The Electoral Roll, which was marked as Exhibit
7, in the case showed that the Ist respondent was aged 29
years. In support of his case 7 the Ist respondent had
examined three witnesses, P.W. 2 Aripulla, P.W. 3 Sirajul
Islam and P.W. 6 Habibar Rahman. He also produced his High
School Leaving Certificate (Exhibit 12) which showed that
he was above 25
377
years on the date of the nomination. The High Court has
summed up its conclusion of the above question at paragraph
14 of its judgment thus:
"14. As already held that the High School
leaving Certificate (Ext-12) and admission
register cannot be rejected. The oral evidence of
the witnesses relating to the age has not been
shaken in the cross-examination. As regards age,
the relatives are best witnesses. Considering the
High School Leaving Certificate (Ext-12) Electoral
Roll (Ext-7) and oral evidence of PW 2 Aripulla,
PW 3 Silajul Islam and PW 6 Habibar Rahman, it is
concluded on the age of the petitioner on the date
for making nomination or scrutiny of nomination
that he had completed the age of 25 years.
We have gone through the evidence bearing on the above
question. We are of the view that the High Court was right
in upholding that the Ist respondent was more than 25 years
of age on the date of scrutiny and he was eligible to be a
member of the Legislative Assembly. Thus the ground on which
the Returning officer had rejected his nomination papers is
untenable.
This takes us to the next question, namely, whether the
Ist respondent was disqualified for being chosen as a member
of the Legislative Assembly on account of the contract
entered into by him in the course of his trade or business
with the Government of Assam subsisting on the date of
scrutiny of nominations as provided by section 9-A of the
Act. Section 9-A of the Act reads thus:
"9-A. 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."
There is a public ferry at Phulbari-ghat, which is
under the control of the Executive Engineer, Public Works
department, Goalpara (Roads) Division. It is admitted by the
Ist respondent that he was the lessee of the tolls of the
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said public ferry for the period between 1.4.1985 and
31.3.1986 but his case, however, was that he had been
relieved from the said contract on 21.11. 1985. But the
appellant
378
pleaded in the course of his written statement that only on
25. l 1.1985, that is on the date of scrutiny of the
nomination papers, the Executive Engineer had at the request
of the appellant, allegedly made on 18.11.1985 released the
petitioner from the contract and that the order of release
had been made after the scrutiny was over. The High Court
had, therefore, to consider the question whether the order
of release had been made on the 21.11.1985 or on 25.11.1985
after the scrutiny of nomination papers. On a consideration
of the evidence led by the parties, the High Court held that
the Ist respondent had been relieved of the charge of the
ferry on 21. 11.1985 and that he was not disqualified under
section 9-A of the Act. As stated earlier when the matter
was argued before us on the first date of hearing the
learned counsel for the parties were asked to make their
submission on the question whether a lease of the ferry
tolls attracted the provisions of section 9-A of the Act and
the learned counsel have made their submissions in that
behalf. The management of a public ferry is governed by the
provisions of the Northern India Ferries Act, 1878
(hereinafter referred to as ’the Ferries Act’) which has
been extended to the State of Assam. section 8 of the Ferris
Act reads thus:
"8. Letting ferry tolls by auction-The tolls
of any public ferry may, from time to time, be let
by public auction for a term not exceeding five
years with the approval of the Commissioner, or by
public auction, or otherwise than by public
auction, for any term with the previous sanction
of the State Government.
The lessee shall conform to the rules made
under this Act for the management and control of
the ferry, and may be called upon by the officer
in whom the immediate superintendence of the ferry
is vested, or, if the ferry is managed by a
municipal or other public body under section 7 or
section 7-A, then by that body, to give such
security for his good conduct and for the punctual
payment of the rent as the officer or body, as the
case may be. thinks fit.
When the tolls are put up to public auction,
the said officer or body, as the case may be, or
the officer conducting the sale on his or its
behalf may, for reasons recorded in writing,
refuse to accept the offer of the highest bidder,
and may accept any other bid, or may withdraw the
tolls from auction.
379
Section 9 of the Ferries Act provides for the recovery
of arrears from the lessee. Section 10 of the Ferries Act
provides for the cancellation of the lease by the
Government. Section 11 of the Ferries Act provides for the
surrender of the lease by the lessee. Section 12 of the
Ferries Act makes provision for the promulgation of rules
which inter alia may provide for the control and the
management of all public ferries within a division and for
regulating the traffic at such ferries; for regulating the
time and manner at and in which, and the terms on which, the
tolls of such ferries may be let by auction, and prescribing
the persons by whom auctions may be conducted and when the
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tolls of a ferry have been let under section 8 of the
Ferries Act for collecting the rents payable for the tolls
of such ferries. Section 13 of the Ferries Act prohibits
plying of any ferry within two miles of a public ferry
without sanction from the appropriate authority. Section 14
of the Ferries Act provides that whoever uses the approach
to, or landing place of, a public ferry is liable to pay the
tool payable for crossing such ferry. Under section 15 of
the Ferries Act provision is made for fixing the rates of
tolls. It says that the tolls, according to such rates as
are, from time to time, fixed by the State Government? shall
be levied on all persons, animals, vehicles and other things
crossing any river by a public ferry and not employed or
transmitted on the public service. The State Government is,
however, given power to declare that any persons, animals
vehicles or other things shall be exempt from payment of
such tolls. Where tolls of a ferry have been let under
section 8 of the Ferries Act any such declaration, if made
after the date of the lease, shall entitle the lessee to
such abatement of the rent payable in respect of the tolls
as may be fixed by the Commissioner of the Division or such
other officer as the State Government may, from time to
time, appoint in this behalf by name or in virtue of his
office. The Rules have been framed by the Chief Engineer,
Assam under section 12 of the Ferries Act for purposes of
the control and management of and for regulating the traffic
at all Government ferries. Under the said Rules, for
Government ferries suitable ferry boats, engines or mars are
supplied at the expense of the Public Works Department. The
lessee shall be responsible as a bailee for these boats,
engines and mars and he shall, on the expiry or earlier
termination of his lease, return them to the Executive
Engineer in good condition, allowance being made for fair
wear and tear. The lessee who acquires the right to collect
toll is bound to cross over on tender of payment in cash of
the authorised toll or on production of a season ticket or
pass, all persons desiring to cross within the hours for
which the ferry according to the terms of the lease is open.
He is precluded from carrying persons whom he may know or
suspect to be fugitives from justice or to be bent upon an
unlawful
380
purpose. He cannot carry over at any one time in his ferry
boat or mar more than the number of persons, animals,
vehicles or other things specified in his lease as permitted
to be so ferried. He has to provide a shed 15 feet long by
15 feet broad, on each side of the ferry for the temporary
accommodation of persons wishing to cross. The lessee has to
furnish monthly a return in the prescribed form supplied to
him by the Executive Engineer giving particulars which are
required to be furnished through it. The approach roads to
all Government ferries and low level bridges are constructed
and maintained by the Public Works Department The lessee is
responsible for conveying immediate information of damage to
approaches to the concerned authorities. The Public Works
Department has to provide sufficient means for embarking and
disembarking all persons, animals, vehicles and things which
a lessee is bound to cross over at his ferry with the
exception of ropes and tying posts for securing the mar. All
Government ferries shall generally be let by public auction;
provided that, for special reasons to be recorded in
writing, the Executive Engineer or Sub-Divisional officer,
Public Works Department, may reserve any ferry from lease
and may work it direct. Collection of tolls by departmental
agency will only be resorted to when absolutely unavoidable.
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The auction sale of the right to carry passengers at the
ferry is held by the Deputy Commissioner/Civil Sub-
Divisional officer or some officer deputed by him for the
purpose. The person whose bid is accepted has to pay the
purchase money in accordance with the Rules. If there is any
default on the part of the lessee in paying the amount
payable by him, the lease is liable to be cancelled. These
are broadly the features of the contract between a lessee of
a ferry and the Government. The question for consideration
is whether a person who takes on lease a ferry under section
8 of the Ferries Act becomes disqualified for contesting the
election to the State Legislature under section 9-A of the
Act. At this stage it is necessary to set out the history of
the provisions contained in section 9-A of the Act. When the
Act was enacted originally there was section 7 of the Act
the relevant part of which reads as follows:
"7. A person shall be disqualified for being
chosen as and for being a member of the either
House of Parliament or of the Legislative
Assembly or Legislative Council of a State-
............................................
(d) If, whether by himself or by any person
or body of persons in trust for him or for his
benefit or on his
381
account he has any share or interest in a contract
for the supply of goods to, or for the execution
of any works or the performance of any services
undertaken by the appropriate Government . "
In 1958 this provision was amended. In the Statement of
objects and Reasons of the Representation of the People
(Amendment) Bill, 1958. which was enacted as the
Representation of the People (Amendment) Act, 1958 it was
stated as follows:
"The language of section 7(d) of the 1951 Act
which provides for disqualification in case of
contracts with the Government is wide and vague
enough to bring any kind or category of contract
within its scope and it has been a fruitful source
of election disputes in the past. Persons who only
occasionally broadcast any talk from the radio
station or contribute article to any Government
publication may come within the mischief of this
section."
The Bill was referred to a Select Committee of
Parliament. The said Select Committee reported on December
15, 1958 with regard to the proposed redrafting of Section
7(d). The Select Committee suggested as follows:
"The Committee have carefully considered the
proposed substituted clause (d) of section 7 of
the Representation of the People Act, 1951. The
Committee feel that in view of the expanding
activities of the Central and State Governments as
the biggest purchasers and suppliers of goods
including food grains and other essential
commodities, a large number of persons in the
country will have some contractual relationship
with the Governments in these matters. Under the
circumstances it will not be proper to disqualify
all such persons who are having contractual
dealings with the Governments from standing for
election or being elected as members of Parliament
or State Legislatures. The Committee, therefore
feel that the better course would be altogether to
omit the existing clause (d) of section 7 of the
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Act."
This suggestion was not, of course accepted. After the
amendment in 1958 section 7(d) of the Act read thus: H
382
"7. A person shall be disqualified for being
chosen as, and for being a member of either House
of Parliament or of the Legislative Assembly or
Legislative Council of a State-
.................................................
(d) If there subsists a contract entered into
in the course of his trade or business by him with
the appropriate Government for the supply of goods
to, or for the execution of any works undertaken
by that Government."
By the Representation of the People (Amendment) Act,
1966 some of the provisions of the Representation of the
People Act were amended. On that occasion sections 7, 8, 9
and some other provisions of the Act, which provided for the
disqualification of persons for being chosen as members of
Parliament or of the State Legislature were substituted by
new sections 7, 8, 8A, 9, 9A, 10 etc. The present section 9-
A was enacted in the place of the former section 7(d).
Section 9-A of the Act was enacted in the same pattern in
which section 7(d), stood after the amendment in 1958. An
explanation was, however, added to it which provided that
only by reason of the fact that the Government had not
performed its part of the contract either wholly or in part,
it could not be said that the contract which attracted
section 9-A was subsisting where a contract had been fully
performed by the person by whom it had been entered into
with the appropriate Government.
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 one for supply of goods to the appropriate
Government and (ii) where the contract is for the execution
of any works undertaken by that Government. If a contract
belonging to either of the two categories is subsisting on
the date of the nomination, the person will be disqualified
for being chosen as a member. In the present case the
contract is not one for supply of goods to the Government.
It does not, therefore, fall under the first class of
contracts which create the disqualification. The question
for determination is whether the contract to collect toll at
a Government ferry entered into in accordance with the
Ferries Act amounts to a contract for the execution of any
works undertaken by the Government. At this stage we should
remember that the words ’or the performance of any services’
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were omitted from section 7(d) by the amendment made in the
year 1958. In N. Satyanathan v. K. Subramanyan and others,
[1955] 2 S.C.R. 83 this Court had occasion to construe
section 7(d) of the Act before its amendment in 1958. In
that case the appellant was a contractor who had entered
into an agreement with the Central Government whereby he had
contracted with the Governor-General for the provision of a
Motor Vehicle Service for the conveyance of postal articles
and mail bags. Under the contract the Governor-General had
agreed to pay to the contractor 200 per month during the
subsistence of the agreement as his remuneration for service
to be rendered by him. The appellant therein was held to be
disqualified under section 7(d) of the Act, as it stood
then, as he had undertaken to carry out a service which the
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Government had undertaken to do. The Court said that "it
cannot be gainsaid that the Government in the Postal
Department is rendering a very useful service and that the
appellant has by his contract with the Government undertaken
to render that kind of service on a specified route. The
present case is a straightforward illustration of the kind
of contract contemplated by section 7(d) of the Act." The
Court took the above view in view of the presence of words
’the performance of any service’ under section 7(d) of the
Act, as it stood then. Those words were omitted from section
7(d) on its amendment in the year 1958 and section 9-A of
the Act as it stands today also does not contain those
words. In Ram Padarath Mahto v. Mishri Singh & Anr., [1961]
2 S .C . R. 470 a similar question arose for consideration .
The appellant in that appeal was a member of a joint Hindu
family which carried on the business of Government stockists
of grain under a contract with the Government of Bihar. His
nomination for election to the Bihar Legislative Assembly
was rejected on the ground that he was disqualified under
section 7(d) of the Act, as he had an interest in a contract
for the performance of services undertaken by the Bihar
Government. The appellant contended that the service
undertaken by the Government was the sale of foodgrains
under the Grain Supply Scheme and the contract was not for
the sale of such foodgrains and did not attract the
provisions of section 7(d) of the Act. This Court held that
the contract was not one for the purpose of any service
undertaken by the Government and the appellant therein was
not disqualified under section 7(d) of the Act. The Court
held that a contract of bailment which imposed on the bailee
the obligation to stock and store the foodgrains in his
godowns was not a contract for the purpose of the service of
sale of grain which the Government had undertaken. The
Government had undertaken the work of supplying grain but
the contract was not one for the supply of grain. The Court
distinguished the decision in N. Satyanathan v. K.
Subramanyam,
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(supra) while reaching the conclusion that the appellant was
not disqualified for being chosen as a member of the Bihar
Legislature. So even at a time prior to the amendment of
section 7(d) of the Act in the year 1958 it was possible to
take the view that certain types of contracts entered into
with the appropriate Government, even though they were
subsisting on the date of scrutiny of nomination did not
disqualify a person from being chosen as a member of the
State Legislature. It is pertinent to refer to the
observation made by Gajendragadkar, J. in Ram Padarath
Mahto’s case (supra) which runs as under:
"It may sound technical, but in dealing with
a statutory provision which imposes a
disqualification on a citizen it would be
unreasonable to take merely a broad and general
view and ignore the essential points of
distinction on the ground that they are technical.
The narrow question is: if the State Government
undertook the work of supplying the grain, is the
contract one for the supply of grain?; In our
opinion, the answer to this question must be in
the negative; that is why we think the High Court
did not correctly appreciate the effect of the
contract when it held that the said contract
brought the appellant s case within the mischief
of s. 7(d)."
Unless the contract in question is one which clearly
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falls under section 9-A of the Act, it would not be proper
to hold that the person who is a party to the contract is
disqualified for being chosen as a member to the State
Legislature. In B. Lakshmikantha Rao v. D. Chinna Mallaiah
and others A.I.R. 1979 A.P. 132 the question that arose for
consideration was whether a person who was carrying on the
business in arrach and toddy under a contract with the
Government under the provisions of the Andhra Pradesh Excise
Act, 1968 was disqualified for being chosen as a member of
the Legislature. The facts of that case briefly stated were
thus. There was an agreement between the highest bidder,
i.e., the returned candidate and the Government in respect
of the carrying on the business in arrack and toddy. A
perusal of the relevant provisions i.e., sections 15 and 17
of the Andhra Pradesh Excise Act and rule 21 of the Rules
framed under that Act as well as the agreements signed by
the returned candidate, showed that the highest bidder had
to deposit the monthly rentals and purchase the arrack from
the Government at the issue price and sell the same to the
public. If there were any arrears in the monthly rentals the
same could be recovered as arrears of land revenue.
Similarly with regard to the toddy shop he had to tap the
toddy from the trees allotted to him by
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the Government by paying the tree-tax and sell the toddy to
the public. For the toddy shop also he had to pay monthly
rentals and if he fell in arrears the same could be
recovered as arrears of land revenue. There were other
incidental conditions in the agreements. The Andhra Pradesh
High Court held that since the contracts entered into by the
successful candidate with the State Government to sell
arrack and toddy did not come within the mischief of section
9-A of the Act as they were neither for supply of goods to
the Government nor for the execution of any works undertaken
he did not suffer from any disqualification for being chosen
as a member of the Legislative Assembly. We have gone
through the above decision carefully. We are of the view
that the High Court was right in the said case in holding
that the returned candidate had not suffered from any
disqualification by reason the fact that he was an excise
contractor.
In the present case the position of the Ist respondent
is more or less similar to the position of the returned
candidate in the decision of the Andhra Pradesh High Court.
The Ist respondent had acquired in the public auction the
right to collect the toll by paying the amount which he had
offered to pay under the contract. He had not undertaken
thereby any contract for execution of any works undertaken
by the Government. The word ’works’ in the expression in
’execution of any works’ appearing in section 9-A of the Act
is used in the sense of ’projects’, ’schemes’, ’plants’,
such as building works, irrigation works, defence works etc.
The Ist respondent in this case had not undertaken to carry
on any such work. According to the Shorter oxford English
Dictionary the expression ’work’ means a structure or
apparatus of some kind; an architectural or engineering
structure, a building edifice. When it is used in plural,
i.e., as ’works’ it means ’architectural or engineering
operations; a fortified building; a defensive structure,
fortification; any of the several parts of such structure’.
The word ’works’ used in Entry 35 of List II of the Seventh
Schedule of the Constitution of India which reads as "works,
lands and building vested in or in the possession of the
State" is used in the same sense. The running of boats
across inland waterways in a topic which falls under Entry
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32 of List III of the Seventh Schedule which reads thus:
"Shipping and navigation on inland waterways as regards
mechanically propelled vessels, and the rule of the road on
such waterways, and the carriage of passengers and goods on
inland waterways subject to the provisions of List I with
respect to national waterways." It is, therefore, difficult
to hold that when a person acquires the right to collect
toll at a public ferry under section 8 of the Ferries Act he
is performing a contract of execution of works undertaken by
the Government. It
386
may have been perhaps different if the words ’in performance
of any services’ which were present in section 7(d) of the
Act, as it stood prior to its amendment in 1958 had been
there is section 9-A of the Act.
We do not find any substance in the argument urged on
behalf of the appellant that because under Condition No. 10
of the form of lease prescribed under the Ferries Act the
lessee is under an obligation during the period of lease to
mark buoys or in any other suitable manner, all submerged
obstruction or dangerous rocks in the rivers within half a
mile of the landing ghats and shall be held responsible for
any loss of damage caused to the marboats striking against
such submerged obstructions or dangerous rocks it should be
held that the Ist respondent had undertaken to execute works
undertaken by the Government. The above condition only
requires the lessee to mark buoys or in any other suitable
manner the places where there were any submerged obstruction
or dangerous rocks within half a mile of the landing ghats.
Having regard to the conditions of the lease and the
provisions of the Act and the Rules made thereunder we are
clearly of the view that the activity undertaken by the
lessee under the agreement cannot be considered as an
agreement for execution of works undertaken by the State
Government.
We are, therefore, of the view that the contract which
the Ist respondent had entered into with the State
Government even though it was subsisting on the date of
scrutiny of nominations would not have the effect of
disqualifying him for being chosen as a member of the State
Legislative Assembly since section 9-A of the Act is not at
all attracted to such a case.
The learned counsel for the appellant however tried to
justify the rejection of the nomination papers of the Ist
respondent on the ground that the appellant was holding an
office of profit under the State Government when the
contract to ply the boats at the ferry was subsisting. We
find it difficult to agree with the learned counsel that
under the contract in question the Ist respondent had been
inducted into any office under the State Government. An
’office’ means a public or private employment with certain
duties to be performed. The words ’office’ and ’officer’ are
used sometimes in a wide sense and sometimes in a narrow
sense. A lawyer is sometimes called an officer of the Court.
But still he is not holding any office profit as such for
purposes of the law of elections. A lessee of tolls under
the Ferries Act is only a contractor who under the lease
acquires the right to collect whatever toll is paid by
persons who the ferry against payment to Government in
387
advance whatever amount he had agreed to pay at the time of
auction. Whether he makes any profit in that business or not
depends ultimately on the amount of toll he is able to
realise during the whole period of lease. Such a contract is
essentially in the nature of a business. It cannot be termed
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as an office in any sense. A transaction of lease under the
Ferries Act is not a lease of an office. In State of Uttar
Pradesh v. Satya Narain Prasad, [1970] 3 S.C.R. 198 this
Court dealing with a case in which the question involved
related to the termination of lease under section 10 of the
Ferries Act has referred to the right of a lease as one
having the character of a business in the following passage
at page 200:
"In construing section 10 of the Act it has
to be borne in mind that it deals with the
cancellation of a lease of tolls of a public
ferry. In other words, once the notice in
effective valuable rights of a lessee came to an
end. This is recognised by the Legislature by
providing a six month’s notice. This period is
given so that he can wind up this particular
business. " (underlining by us)
It is urged that since the Ist respondent had the right
to secure the services of the police whenever needed the Ist
respondent should be deemed a person holding an office of
profit. The right to requisition the services of the police
again did not make the Ist respondent a person holding an
office of profit. In fact for that matter anybody may
complain to the police and seek their assistance when there
is threat to public property or to the person or property of
any person. We hold that the Ist respondent was not holding
an office of profit when he was a lessee under the Ferries
Act just like an Excise contractor or a fair price shop
dealer who sells grains supplied by Government is not such a
holder of office of profit.
In view of the above findings it is not necessary to
decide the question whether the lease was subsisting on the
date of scrutiny of nomination or not
Thus in any view of the matter it cannot be held that
the Ist respondent was disqualified for being chosen as a
member of the State Legislature. The rejection of his
nomination papers was, therefore, improper. The election of
the appellant was, therefore, rightly set aside by the High
Court on the ground mentioned in section 100 1)(c) of the
Act.
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The appeal, therefore, fails and it is dismissed.
Having regard to the peculiar features of the case we direct
the parties to bear their own costs both in this Court and
in the High Court.
N.P.V. Appeal dismissed.
389