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CASE NO.: Appeal (civil) 6931  of  2000

PETITIONER: KARTAR SINGH BHADANA

       Vs.

RESPONDENT: HARI SINGH NALWA & ORS.

DATE OF JUDGMENT:       27/03/2001

BENCH: S.P. Bharucha, N. Santosh Hegde & Y.K. Sabharwal.

JUDGMENT:

BHARUCHA, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  appellant and the respondents were candidates  from the  Smalkha  constituency  at the general election  to  the Haryana Assembly held on 22nd February, 2000.  The appellant secured  the largest number of votes, namely 37,174, and  he was  declared elected.  The first respondent secured  26,159 votes.   The first respondent challenged the election of the appellant  by filing an election petition in the High  Court of  Punjab  and Haryana.  He contended that at the  time  of scrutiny  of  the nomination papers the appellant held  from the  appropriate  Government, that of the State of  Haryana, five  leases for the extraction of major and minor  minerals and that, therefore, he was disqualified from contesting the election.  The High Court upheld the contention holding that a  mining  contract  or  a mining lease is  a  contract  to execute a Government work on behalf of the Government and it is  covered under Section 9-A of the Act, the Act being the Representation  of People Act, 1951 (hereinafter referred to as  the said Act).  The High Court set aside the  election of  the  appellant  and declared the first  respondent  duly elected.

   The judgment and order of the High Court is under appeal by special leave.

   Section 9-A of the said 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.

   The  disqualification provision in the said Act has been amended  twice.   In  the original Act it  was  provided  by Section  7  that  a person is disqualified if,  whether  by himself or by any person or body of persons in trust for him or  for  his benefit or on his account, he has any share  or

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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.  This provision  was amended in 1958 and it said that a person  is disqualified  if there subsists a contract entered into 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. This provision was  amended  in  1966 and Section 9-A as quoted  above  was substituted.

   Three    judgments    of    this    Court   deal    with disqualification.    A    Constitution    Bench   considered disqualification  in  C.V.K.   Rao Vs.  Dentu  Bhaskara  Rao [1964(8)  SCR 152] in the context of a mining lease.  It was there  contended  that  a mining lease was tantamount  to  a contract  for  the  supply  of   goods  to  the  appropriate Government and it was held that the contention must fail.

   In  Dewan  Joynal  Abedin Vs.  Abdul Wazed  Alias  Abdul Wazad  Miah  & Ors.  [1988 Supp.  SCC 580] the  question  of disqualification was considered in the context of a contract to collect tolls at a Government ferry run under the Ferries Act.  This Court held that an analysis of Section 9-A showed that  only in two cases would a person be disqualified if he had  entered into a contract with the appropriate Government in  the course of his trade or business, which subsisted  on the date of scrutiny of nominations;  they were (1) when the contract  was  one  for supply of goods to  the  appropriate Government  and  (2)  when it was one for the  execution  of works  undertaken  by  that Government.   The  question  for determination,  it  was  said, was whether the  contract  to collect  tolls  at  a  Government   ferry  entered  into  in accordance  with the Ferries Act amounted to a contract  for execution  of  any  works   undertaken  by  the  appropriate Government.    The   Court  noted    the   observations   of Gajendragadkar,  J.   in the case of Ram Padarath Mahto  Vs. Mishri Singh [1961(2) SCR 470], thus :

   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  Court also took note of the judgment of the  Andhra Pradesh  High Court in B.  Lakshmikantha Rao Vs.  D.  Chinna Mallaiah  [AIR 1979 AP 132] where the question was whether a person  who  was  carrying on business in arrack  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 High Court held  that this contract did not come within the mischief of Section 9-A of the said Act as it was neither for the supply of  goods  to  the Government nor for the execution  of  any works  undertaken by it.  This Court approved the view taken in  the Andhra Pradesh decision and found that the  position of the returned candidate before it was more or less similar to  that  of  the returned candidate in the  Andhra  Pradesh case.   It was noted that the word works in the expression execution  of  any  works in Section 9-A was used  in  the sense  of projects, schemes, plants, such as building works, irrigation  works,  defence  works, etc.  According  to  the Shorter  Oxford  English Dictionary, the  expression  work meant   a  structure  or  apparatus   of  some   kind;    an

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architectural  or engineering structure, a building edifice. When  it  was  used in the plural, that is, as  works,  it meant  architectural or engineering operations, a  fortified building, a defensive structure, fortification or any of the several  parts  of such structures.  This Court,  therefore, found  it difficult to hold that when a person acquired  the right  to collect tolls at a public ferry under the  Ferries Act, he was performing a contract for the execution of works undertaken by the Government.

   This  Court  in  Ranjeet Singh  Vs.   Harmohinder  Singh Pradhan  [1999(4)  SCC 517] was concerned with a case  where the  returned  candidate  had  a  subsisting  contract,   in partnership  with  others, for the sale of liquor  with  the appropriate  Government.   This  Court, relying  upon  Dewan Joynals  case,  held  that the returned candidate  had  not incurred the disqualification.  This Court said that Section 9-   A   was  a  statutory   provision   which   imposed   a disqualification   on  a  citizen;    it   was,   therefore, unreasonable  to take a general or broad view, ignoring  the essentials  of  the  section  and   the  intention  of   the legislature.

   In  so far as is relevant to a case where it is  alleged that a candidate holds a contract for the execution of works undertaken  by  an  appropriate   Government,  Section   9-A requires (a) that there should be a contract entered into by the candidate;  (b) that it should be entered into by him in the  course of his trade or business;  (c) that it should be entered  into with the appropriate Government;  (d) that  it should  subsist;   (e)  that  it   should  relate  to  works undertaken  by that Government and (f) that it should be for the  execution of such works.  The provisions of Section 9-A disqualify a citizen from contesting an election;  a citizen may,  therefore,  be disqualified only if the facts  of  his case  squarely  fall  within the  conditions  prescribed  by Section 9-A.

   It  is  not  in dispute that the appellant  held  mining leases  from the appropriate Government.  What is in dispute@@              JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ is  whether,  by reason of the mining leases, the  appellant@@ JJJJJJJJJJJJJJJJ was  executing  works  undertaken by  the  Government.   The contention on behalf of the appellant is that the Government has  not undertaken mining operations and the appellant  was not carrying out the same for the Government.

   Learned  counsel  for  the  first  respondent  drew  our attention  to the meaning of the word undertake in  Blacks Dictionary of Law, Fifth Edition.  It reads thus :

   UNDERTAKE    To  take on oneself;  to engage  in;   to enter  upon;  to take in hand;  set about;  attempt;  as, to undertake  a task or a journey;  and, specifically, to  take upon  oneself  solemnly or expressly.  To lay oneself  under obligation  or to enter into stipulation;  to perform or  to execute;   to covenant;  to contract.  Hence, to  guarantee; be  surety  for;   promise;   to accept or take  over  as  a charge;   to  accept  responsibility for the  care  of.   To engage to look after or attend to, as to undertake a patient or  guest.   To  endeavor to perform or  try;   to  promise, engage, agree, or assume an obligation.

   There can be no doubt about the correctness thereof.

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   Learned  counsel for the first respondent submitted that the  appellant,  in doing mining work, was  executing  works undertaken  by the Government, which it was the Governments obligation  to  perform.   Because it was  the  Governments obligation,  this  was works undertaken by  the  Government. Reference was made by learned counsel, and by the High Court in  the judgment under challenge, to Section 18 of the Mines and Mineral (Development and Regulation) Act, 1957.  Section 18  deals with mineral development and says that it shall be the duty of the Central Government to take all such steps as may  be  necessary  for   the  conservation  and  systematic development  of minerals in India and for the protection  of environment by preventing or controlling any pollution which may  be  caused by prospecting or mining operations and  for such purposes the Central Government may, by notification in the Official Gazette, make such rules as it thinks fit.  The obligation  under Section 18, such as it is, is that of  the Central Government and not that of the State of Haryana, the appropriate  Government.   Secondly, the obligation  of  the Central Government under Section 18 is to take steps for the systematic  development  of minerals in India and  for  such purpose to make rules.  There is no obligation cast upon the Central  Government to exploit minerals;  the obligation  is to  ensure  that  such  exploitation   as  takes  place   is systematic.

   Reference  was  made  to the mining  leases  by  learned counsel   for  the  first   respondent.    Thereunder,   the appropriate   Government  has  granted   and  demised  to  a partnership  firm  of which the appellant is a  partner  the right  to  win  minerals from the areas  therein  mentioned. Clause  23 thereof, which was relied upon, says that if  the lessee  does  not  carry  out   its  obligations  under  the covenants  in the lease the lessor may cause the same to  be carried  out  and  performed and the lessee  shall  pay  the lessor  all  expenses in this behalf.  There is  nothing  in this  clause in the leases which can support the  submission made  on  behalf of the first respondent that the  appellant had  entered into a contract for the execution of any  works undertaken by the Government.

   As we see it, it is only when the appropriate Government has  undertaken  works,  such as the laying of a  road,  the erection of a building or the construction of a dam, and has entered into a contract for the execution of such works that the  contractor is disqualified under Section 9-A.   Section 9-A  does  not operate to disqualify the lessee of a  mining lease such as the appellant.

   Having regard to this conclusion, it is not necessary to deal with the submission on behalf of the appellant that, in any  event, the High Court could not have declared the first respondent duly elected.

   The  appeal  is allowed.  The judgment and  order  under appeal  is set aside.  The first respondent shall pay to the appellant the cost of the appeal quantified at Rs.25,000/-.

   ................................J.

   [ S.P.  Bharucha ]

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   ................................J.

   [ N.  Santosh Hegde ]@@     IIIIIIIIIIIIIIIIIIIII

   .................................J.

   [ Y.K.  Sabharwal] @@     IIIIIIIIIIIIIIIIIII

   March 27, 2001