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PETITIONER: SOMNATH RATH

       Vs.

RESPONDENT: BIKRAM K.  ARUKH & ORS.

DATE OF JUDGMENT:       14/09/1999

BENCH: S.  RAJENDRA BABU, R.C.  LAHOTI.

JUDGMENT:

     Aggrieved  by the dismissal of his election  petition, challenging     the    election      of     the     returned candidate-respondent  No.   1, vide order of the High  Court dated  23rd of December, 1999, the appellant has filed  this appeal.

     For  the  purpose  of this appeal however only  a  few facts are relevant and necessary to be noticed.

     The last date for filing nominations in respect of the Assembly  Constituencies  in  the State of  Orissa  for  the elections  held in the year 1995 was 17th of January,  1995. Thirteen persons including the appellant and the respondents filed  their  nomination papers for 66, Bhanjnagar  Assembly Constituency.   At  the time of scrutiny of  the  nomination papers on 19th January, 1995, the Returning Officer rejected the nomination papers of respondent Nos.  5, 6 and 7.  While the  nomination  papers  of respondent Nos.  5  and  6  were rejected  by  the Returning Officer on the ground  that  the same

     were  found to be defective, the nomination papers  of respondent  No.  7-Panchanan Das was rejected on the  ground that  "Candidate is a PDS dealer of Bhanjnagar Ward No.  13. Hence rejected."

     After  polling, results of the elections were declared and respondent No.  1 was declared successful and elected by a margin of 1567 votes.

     An  election  petition was filed by the  appellant  on 26th  of  April,  1995 calling in question the  election  of respondent  No.   1,  both on the ground  of  commission  of corrupt  practices  as  also for improper rejection  of  the nomination  papers  of  respondent Nos.  5, 6  and  7.   The election  petition  was resisted and written  statement  was filed  by  respondent No.  1.  On the basis of pleadings  of the parties, certain issues came to be framed.  However, for the  purpose  of  this  appeal, the  following  issues  only require our consideration:

     "(1)  Whether  the  nomination  of   any  one  of  the candidates  namely Shri Pratap Chandra Swain, Shri  Rajendra Kumar  Sahu  and  Shri  Panchanan Das  has  been  improperly rejected  by the Returning Officer and as such the  election of  Bikram Keshari Arukh, the returned candidate (respondent

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No.  1) for the66-Bhanjanagar Assembly Constituency is void?

     (2) Whether the petition as laid 1s maintainable?"

     Evidence  was  led by the parties in respect of  these issues.

     We  shall  take  up  the question  relating  to.   the rejection  of  the nomination paper of Shri  Panchanan  Das- respondent  No,  7  only  and do not find  it  necessary  to consider  either  the  grounds of rejection  or  the  effect thereof  insofar  as  Shri  Pratap  Chandra  Swain  or  Shri Rajendra  Kumar Sahu- respondent Nos.  5 and 6  respectively are  concerned  because  the findings recorded by  the  High Court  in their case have not been seriously assailed before us.  findings regarding the rejection of nomination paper of respondent No.  7 have, however, been vehamently assailed.

     Insofar  as respondent’ No.  7, Shri Panchanan Das  is concerned,  the  material averments regarding  the  improper rejection  of his nomination paper are contained in para, 10 of the election petition, which reads thus :

     "10.   That  the nomination of Shri Panchanan Das  S/o Late  Saita  Das,  At - Sanatota  Sahi,  Bhanjanagar,  Dist. Ganjam,  Respondent  No.  7 has been rejected on the  ground that  the  candidate is the P.D.S.  Dealer of Ward No.   13. The  rejection Order is illegal and improper because  P.D.S. Dealership  is not a disqualification for being chosen as  a member  of  the  legislative Assembly.  Besides,  there  was evidence  or  material before the Returning Officer  at  the time  of scrutiny .to come to such a conclusion.  In  course of  his trade or business through P.D.S.  Dealership of Ward No.   13 under the Bhanjanagar, N.A.C., Sri Das had  nothing to  do  with  the  State Government and  much  less  he  was interested  in  any  subsisting   contract  with  the  State Government  which  could  have disqualified  him  under  the provisions  of  the Representation of the People Act,  1951. He had not entered into any contract at all with the State

     Government.   His  appointment as such was  under  the recommendation  of committee set up by the N.A.C.  He was to purchase  commodities  at prices fixed and on selling get  a commission which 1s also fixed.  Therefore there is no scope for any advantage being derived even if one becomes a member of   the  Legislative  Assembly.    In  the   circumstances, therefore,  the nomination of Sri Panchanan Das having  been improperly  rejected the election of the Respondent No.1  is liable to be declared void.  .  .  .  .  "

     In  the written statement filed by respondent No.   1, the  response  to the averments contained in para 10 of  the election petition 1s as follows:

     "15.   That  the averment made in paragraph 10 of  the election petition that the nomination paper of Sri Panchanan Das,  the  Respondent No .7 has been improperly rejected  1s false  and denied and the petitioner is put to strict  proof thereof.  The Returning Officer has acted legally and within his power and authority in rejecting the nomination paper in question as the same was violative of the relevant provision of  the Act and he has made an endorsement to that effect on this nomination paper.  Thus this averment is denied."

     The  learned Designated Judge of the High Court  after

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considering  the  evidence on the record and taking note  of various  judgments  including  the judgment  of  the  Andhra Pradesh   High  Court  in   Cheekati  Parasuram  Naidu   Vs. Mariseria  Venkatarami  Na.1du and another AIR 1985 AP,  169 opined :

     "The transactions between the State and respondent No. 7  do  not  constitute supply by the latter  to  the  State. Therefore,  it  cannot  be said that respondent No.   7  was disqualified in terms of Section 9A."

     Thus,  the  learned  Designated Judge found  that  the ground  on  which the nomination paper had been rejected  by the Returning Officer was not valid.

     The  learned Designated Judge of the High Court, while dismissing  the  election  petition, inspite  of  the  above finding observed :-

     "In.  view of the legal position there can be no doubt that improper rejection nullifies the election.  But some of the  peculiar  features  as  highlighted above  need  to  be carefully  analysed.   No doubt an election dispute  can  be raised  by a candidate or an electorate of the constituency, because  the  election involves each of the  electorates  as well  as  the contestants.  Judged in that  background,  the election  petition  has  been  he^d to  be  maintainable  as discussed above.

     Improper   rejection  of  a  nomination  affects   the election.   But  the  person who 1s really affected  is  the person  whose  nomination paper has been re.iected.  In  the case  at  hand, he himself states that his presence  in  the field  of contest would have hardly made any difference  and would  not  have  materially affected the  election  of  the electeed  cand i date.  He has stated with reference to  his past  performance invarious elections that he would not have polled  more than 200 to 300 votes.  A candidate is the best person  to  say  about  his  election  prospects’  When  the candidate himself states that he would have got about ?00 to 300 votes had he contested, it would be not proper to accept the version

     of  the  election petitioner that his presence in  the election contest would have materially affected the result." (Emphasis Ours)

     The learned Designated Judge also opined

     "Respondent No.  7 Panchanan Das, whose nomination has been  rejected, has stated that he did not think -it  proper to  file  election  petition as he was  satisfied  that  his presence  in  the field of contest would not have  made  the position different."

     In  our opinion, the above approach of the High  Court was wholly erroneous.

     Section  100  (1)  (c) of the  Representation  of  the People  Act,  19.51 (hereinafter referred to as  ’the  Act’) provides as under :-

     "100.  Grounds for declaring election to be void:- (1) Subject  to  the provisions of sub-section (2) if  the  High Court is of opinion-

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     (a) .............

     (b) .............

     (c)  that any nomination has been improperly rejected; or ..."

     The  High  Court  having found and,  in  our  opinion, rightly  that the ground on which the Returning Officer  had rejected the nomination paper of respondent No.  7,

     viz.,   that   he  was  a  dealer  under  the   Public Distribution  System did not disqualify him from  contesting the  election,  ought  not  to have  proceeded  any  further because it was essentially a case where the rejection of the nomination  paper  by  the  Returning  Officer,  insofar  as respondent  No.   7-  Shri Panchanan Das is  concerned,  was improper  because respondent No.  7 was not disqualified  in terms of Section 9A of the Act.  The improper rejection of a nomination  paper  by itself and without anything more is  a ground  under  Section 100 (1)(c) of the Act to declare  the election  void.   No  enquiry  as to  "material  effect"  on account of the rejection of the nomination paper is required to be made under Section 100 (1)(c) of the Act.  The enquiry whether  the  result  of  an election  has  been  material1y affected  insofar as the Returned Candidate is concerned  is required  in the cases covered by Section 100 (l)(d) of  the Act.

     Learned  counsel for the Returned Candidate,  however, asserted  that  the  finding of the  Returning  Officer  for rejecting  the  nomination  paper was correct and  the  High Court’s  finding  in that behalf was not  correct.   Learned counsel  submitted  that  the case of respondent No.   7,  a dealer  under the Public Distribution Scheme, was covered by Section  9A  of  the  Act.  We are  unable  to  accept  this submission.

     Section 9A of the Act reads, thus :

     "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."

     Section 9A of the Act has come up for consideration of this  Court in Dewan Joynal Abedin Vs.  Abdul Waged a I  ias Abdul Wazad Miah and Others.  1988 (Supp) SCC, 580 = 1987(2) SCALE,  1447  and  RanJeet   Singh  Vs.   Harmohinder  Singh Pradhan.   1999 (3) SCALE, 630.  Analysing Section 9A of the Act,  this  Court  has consistently taken the  view  that  a person would be disqualified under Section 9A of the Act, 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 nominations and :

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     (1)  the  contract is one for supply of goods  to  the Appropriate Government;  and

     (11)  the  contract is for the execution of any  works undertaken by that Government .............

     We  find ourselves unable to accept the submission  of learned  counsel for respondent No.  1 that in Section 9A of the Act, the expression ’works’ would also include ’schemes’ of  the type of Public Distribution System.  The  expression ’works’  as  used  in Section 9A was  interpreted  in  Dewan Joynal Abedin (supra) wherein this Court opined :

     ".....    The  word  ’works’  in  the  expression   in ’execution  of any works’ appearing in Section 9A of the Act is  used  in the sense of ’projects’,  ’schemes’,  ’plants’, such as building works, irrigation works, defence works etc. Respondent 1 in this case had not undertaken to carry on any such  work.  According to the Shorter Oxford 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, fortifications;  any  of the  several  parts of such structure".  The  words  ’works’ used  in entry 35 of List II of the Seventh Schedule of  the Constitution  of  India  which reads as  "works,  lands  and buildings vested in or in the possession of

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     the  State" is used in the same sense.  The running of boats  across in land waterways 1s a topic which falls under entry  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  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 1956 had been there  in Section 9-A of the Act."

     The  above  observations are a complete answer to  the submission made by learned counsel for respondent No.  1.

     From  the  pleadings of the parties  and  particularly averments  contained in para 10 of the election petition, it is  obvious that the respondent No.  7 - Shrl Panchanan  Das did  not  have any subsisting contract in the course of  his trade or business with the Appropriate Government either for the  supply of goods to the Government or for the  execution of  any works undertaken by t?hat Government.  He was a mere licensee  under  the  Public Distribution  System.   Such  a person does not suffer any disqualification for being chosen as  a Member of the Legislative Assembly under Section 9A of the Act.

     Since  the only ground on which the Returning  Officer

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rejected  the  nomination  paper  of  Shri  Panchanan   Das, respondent No.  7 was that "he was a dealer under the Public Distribution  System" and the High Court rightly found  that respondent  No.  7 was not disqualified under Section 9A  of the  Act,  it  ought to have been held that  the  nomination paper  of respondent No.  7 had been improperly rejected and as a consequence Section 100 (1)(c) of the Act was attracted to avoid the election.

     The  improper  rejection  of the nomination  paper  by itself being sufficient to invalidate the election, the High Court  under  the circumstances fell in error in  dismissing the  emotion petition and not invalidating the ’election  of the  Returned Candidate on the ground of improper  rejection of  the  nomination  paper  of  respondent  No.   7  -  Shri Panchanan Das.

     As  a  result  of the above  discussion,  this  appeal succeeds  and  is  allowed.    Consequently,  the   election petition  would stand allowed to the extent indicated above. The election of the Returned

     Candidate-respondent  No.   1  is, hereby,  set  aside under Section 100(1) (c) of the Act.  We, however, leave the parties  to  bear their own costs insofar as this appeal  is concerned.