PETITIONER:
JUGAL KISHORE PATNAIK
Vs.
RESPONDENT:
RATNAKAR MOHANTY
DATE OF JUDGMENT26/07/1976
BENCH:
KHANNA, HANS RAJ
KRISHNAIYER, V.R.
UNTWALIA, N.L.
CITATION:
1976 AIR 2130 1977 SCR (1) 49
1977 SCC (1) 567
ACT
Representation of the People Act, 1951--S. 9 A.--Con-
tract signed as President, Gram panchayat--Rejection of
nomination paper--if valid--Improper rejection--If Courts
could give relief under s. 100(1)(c).
HEADNOTE
On the ground that there were subsisting contracts
between him and the State Government for execution of cer-
tain works, the nomination papers of the respondent for the
general election to the State Assembly were rejected by the
Returning Officer under s. 9A of the Representation of the
People Act, 1951 at the instance of one of the contesting
candidates. In the election that ensued the appellant was
declared elected. The respondent in his election petition
contended that the works on account of which he had been
disqualified had been undertaken by him, not in his personal
capacity, but as the Sarpanch of the Gram Panchayat. The
High Court held that the respondent was not disqualified
under s. 9A of the Act and declared the election void.
On appeal, it was contended that the objections regard-
ing the validity of the nomination papers of the respondent
were raised in collusion with the respondent and a duly
elected candidate should not be made to suffer because of an
order made on such collusive objections.
Dismissing the appeal,
HELD: (1 )(a) The appellant has clearly admitted in his
written statement that objections which were filed about the
validity of the respondent’s nomination papers were not
collusive but genuine. [53 G]
(b) According to Sec. 100(1)(c) of the Act, if the High
Court is of the opinion that any nomination had been improp-
erly rejected, it shall declare the election of the returned
candidate to be void. In view of the imperative nature of
the provision, it is open to question as to whether courts
can, in the event of an improper rejection of nomination,
afford relief to the successful candidate on the score that
the objections resulting in the improper rejection of nomi-
nation, were collusive. Whether the legislature would do
something in the matter is essentially for the legislature
to decide, [53 G-H]
(2) A perusal of one of the disputed items shows that the
tender in respect of the work was accepted on behalf of a
Cooperative Society of which the respondent was the Presi-
dent. It was not the respondent but the Society which
entered into contract for the execution of the work and he
signed the documents in his capacity as President of the.
Society. The contract was not subsisting on the date of
filing of the nomination paper. In respect of another item
the contract was not entered into with the. respondent in
his personal capacity but the work had to be executed by the
Gram Panchayat. [54F-G]
Krishna Iyer J. (concurring)
(1) In the instant case the Returning Officer was
taken in by the specious plea that the respondent had‘
subsisting contracts with the State Government an& rejected
his nomination papers. Its aftermath was that the. people’s
verdict had been stultified. Had there been any procedure
for quick determination of objections to nominations with
early appellate finality attached to it, the lurking danger
of the whole process being ultimately baulked on account of
antecedent official error would not have arisen. [56 C]
(2) The ambiguity in s. 9A, especially as to how long
and in what sense can a contract be said to be subsisting
envelopes the disbarment provision with subtle legal ques-
tions such as: how long does a contract subsist ? Is every
50
liability arising on a breach of contract a claim under the
contract the Provisions of s . A9 ? If Government money is
involved in the execution of the work does the contract
necessarily become one with Government ? It is very de-
sirable that the disqualificatory net should not be cast
too wide to disfranchise innumerable persons and must be
easy of ascertainment if must be uncertainty is not to
overhang elections [56 EH]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 910 of 1970.
(From the Judgment and order dated 16-6-1975 of the
Orissa High Court in Election Petition No. 1/74).
D.P. Singh, R.P. Singh, Rajiv Dutta, Mrs. Nilma, L.R.
Singh and R.K. Jain, for the Appellant.
Santosh Chatterjee, G.S. Chaterjee and D.P. Mukherjee,
for the Respondent.
The Judgment of H.R. Khanna and N.L. Untwalia, JJ. was
delivered by Khanna, J. V. R. Krishna Iyer, J gave a sepa-
rate concur ring opinion.
KHANNA, J. On an election petition filed by Ratnakar
Mohanty respondent, the election of Jugal Kishore Patnaik
appellant to the Orissa Legislative Assembly from Bhadrak
constituency was declared to be void by the Orissa High
Court and as such set aside. The appellant has filed the
present appeal against the judgment of the High Court.
Bhadrak assembly constituency is a single-member general
constituency. During the general elections to the Orissa
Legislative Assembly held in February 1974, the respondent
filed four nomination papers for being elected from this
constituency. At the time of scrutiny on January 36, 1974,
objection was raised at the instance of Balaram Sahu, one
of the contesting candidates, before the Returning Officer
that the respondent was disqualified for being chosen as a
member of the Assembly as there subsisted contracts between
him and the Government of Orissa for execution of certain
works. The respondent, it was accordingly asserted, was
disqualified under section 9A of the Representation of the
People Act, 1951 (hereinafter referred to as the Act) from
seeking election. Some documents were also produced before
the Returning Officer to show that proceedings had been
initiated by the Block Development Officer for realisation
of certain amounts alleged to be due under those contracts
from the respondent. The Returning Officer upheld the
objection and rejected the nomination papers of the re-
spondent.
Four candidates contested the election, but the main
contest was between the appellant, a Congress nominee, who
secured 25,522 votes, and Balaram Sahu, art Utkal Congress
nominee, who secured 18,723 votes. The result of the
election was declared on February 28, 1974. Petition to.
challenge the election of the appellant was filed by the
respondent on April 12, 1974.
The case of the respondent as set up in the election
petition was that his nomination papers had been improperly
rejected by the Returning Officer. According to the re-
spondent, the works on account
51
of which he had been held to be disqualified by the Return-
ing Officer had been undertaken by him not in his personal
capacity but as the Sarpanch of Rahanj Gram Panchayat under
the Bhadrak Panchayat Samiti. The respondent, therefore,
prayed that the election of the appellant be declared to
be void.
The petition was resisted by the appellant. Objections
were raised on his behalf that the petition was liable to be
dismissed for non-compliance with sections 81, 82 and 83 of
the Act. It was also averred that the nomination papers
filed by the respondent were not in conformity with sections
33 and 34 of the Act. On merits, the appellant stated that
the respondent was disqualified under section 9A of the Act
from seeking election to the Legislative Assembly of Orissa
because he had on the date of filing of the nomination
papers subsisting contracts with the Government of Orissa in
course of his trade and business for execution of work
undertaken by the Government. Following issues were framed
by the High Court:
ISSUES
1. Is the election petition liable to be
dismissed for noncompliance of sections 81, 82 and
83 of the Representation of the People Act, 1951 ?
2. Whether the nomination paper filed by the
petitioner was in substantial compliance of sec-
tions 33 and 34 of the Representation of the People
Act, 1951 ?
3. Was the petitioner disqualified under
section 9A of the Representation of the People Act,
1951 having subsisting contract with the Govern-
ment of Orissa in course of his trade and busi-
ness for execution of work undertaken by the Gov-
ernment on the date of the filing of the nomination
?
4. To what relief, if any, the petitioner
is entitled to in the facts and circumstances of
the case ?"
Issues (1) to (3) were decided by the High Court in favour
of the respondent and against the appellant. In the result,
the election of the appellant was declared to be void.
In appeal before us Mr. D.P. Singh has at the outset
assailed on behalf of the appellant the finding of the High
Court on issue No. (1 ). The challenge to the finding on
issue No. (1 ) is, however, confined only to alleged
infraction of sub-section (3) of section 81 of the Act.
According to that sub-section, every election petition shall
be accompanied by as many copies thereof as there are re-
spondents mentioned in the petition, and every such copy
shall be attested by the petitioner under his own signature
to be a true copy of the petition. Mr. Singh contends that
no attested copy of the election petition signed by the
petitioner was filed along with the petition. This conten-
tion has been: controverted by Mr. Chatterjee on behalf of
the respondent, who submits that a copy of the petition
attested by the respondent under his own signature was filed
along with the petition. It is further pointed out that the
said attested copy of the petition was sent along with the
52
summons to the appellant, but as., he declined to accept the
summons, the attested copy along with the summons was af-
fixed at his residence. The above stand of the respondent is
borne out by the report of the process server.
Mr. Singh has assailed the correctness of the above
report of the process server, and has contended that in the
index attached to the petition there was no reference to
the copy. As against that, it is submitted on behalf of
the respondent that it is not the usual practice in the High
Court to refer to the copy of the petition in the index.
There are, in our opinion, some broad facts of the case
which lend support to the finding of the High Court on
issue No. (1 ) that the election petition was accompanied
by an attested copy signed by the respondent. Endorsement
dated April 15, 1974 made by an officer of the High Court
shows that a copy of the election petition had been flied.
We find no cogent reason as to why an officer of the High
Court should make a false endorsement on the petition if,,
in fact, no such copy had been filed. As regards the factum
o.f the, attestation of the copy by the respondent under his
own signature we find that the appellant cannot in the very
nature of things assert positively that the copy had not
been attested by the respondent as, according to. him, he
did not see that copy. The copy was also not available on
the record as the same had been affixed at the residence of
the appellant when he, according to the report of the proc-
ess server, declined to accept the summons. Before summons
were issued to the appellant, the following endorsement was
made by an officer of the High Court in respect of the
election petition flied by the respondent:
"Defect Nil."
We see no cogent ground to question the correctness of this
endorsement which clearly lends support to the inference
that the copy filed with the petition had been attested by
the respondent and that the petition did not suffer from
lack of compliance with the: procedural requirement.
Mr. Singh has next assailed the correctness of the,
finding of the High Court on issue No. (2). It is urged that
the respondent obtained signatures of his proposers on blank
nomination papers, subsequently filled in the columns and
then filed the nomination papers. It is, in our opinion not
necessary to express opinion about three of the nomination
papers as we find that one of the, nomination papers in.
any case did not suffer from any such alleged infirmity.
This nomination paper of the respondent was signed by Laksh-
mikant Mahapotra (PW 3 ) as proposer. Evidence of this
witness dearly shows that he signed, the nomination paper as
proposer of the respondent after the various columns in
that paper had been filled in. Nothing has been brought to
our notice as to why the statement of the witness in this
respect be not accepted. As at least one of the nomination
papers filed by the respondent was in compliance with the.
legal requirement,. the High Court, in our opinion, correct-
ly decided issue No. (2). In view of the above finding, it
is not necessary to express opinion on the point as to
whether a nomination paper should be hold to be invalid in
case the
53
signature of the proposer is obtained before filling in the
columns of the nomination paper.
It has been faintly argued that Balaram Sahu, who raised
objection to the validity of the nomination papers of the
respondent, was not impleaded as a party in the election
petition and as such the: petition was liable to be dis-
missed for non-joinder of parties. This submission too is
bereft of force. According to section 82 of the Act, a
petitioner shall join as respondents to his petition where
the petitioner, in addition to claiming a declaration that
the election of all or any of the returned candidates is
void, claims a further declaration that he himself or any
other candidates has, been duly elected, all the contesting
candidates other than the petitioner, and where no such
further declaration is claimed, all the returned candidates.
It is further provided that if allegations of any corrupt
practice are made in the petition against any other candi-
date, he too shall be joined as a respondent. In the present
case, there was no prayer made by the respondent in the
election petition that he or any other person should be
declared to have been duly elected. There was also no
allegation of corrupt practice against any candidate. In
the circumstances, the requirements of law should be held to
be fully satisfied when the respondent impleaded the suc-
cessful candidate, namely, the appellant, as a respondent in
the petition.
Contention has also been advanced on behalf of the
appellant that the objections of Balaram Sahu before the
Returning Officer about the validity of the nomination
papers of the respondent were raised in collusion with the
respondent. The appellant, who has been duly elected,,
should not, according to the contention, suffer because of
any order made on such collusive objections. In this
respect we find that .there is no factual basis for the
assertion that the objections which were raised by Balaram
Sahu about the validity of the nomination papers of the
respondent were of collusive character. On the contrary, the
appellant in the course of his written statement stated in
respect of the objections as under:
"At the time of the scrutiny valid and genuine objec-
tions were filed against the petitioner on the ground that
there was subsisting contract between the petitioner and the
Government of Orissa and as such he was disqualified to be a
candidate."
In view of the unequivocal assertion of the appellant in
the written statement that the objections were valid and
genuine, it would not be permissible for the appellant to
take an inconsistent stand in appeal and urge that those
objections had been filed in collusion with the. respondent.
Apart from that, we find that according to section 100 (1)
(e) of the Act, if the High Court is of the opinion that any
nomination has been improperly rejected, it shall declare
the election of the returned candidate to be void. In view
of the imperative nature of the provision, it is open to
question as to whether the courts cam in the event of an
improper rejection of nomination, afford relief to the
successful candidate on the score that the objections re-
sulting in the improper rejection of the nomination, were
collusive. Whether the legislature would do something in
the matter is essentially for the legislature to
54
decide. We need not, however, dilate upon this aspect of
this case in the face of our finding that the appellant has
clearly admitted in the written statement that the objec-
tions which were filed about the validity of the nomination
papers of the respondent were not collusive but were genu-
ine.
Lastly, Mr. Singh has assailed the finding of the High
Court on issue No. (3). Although during the course of the
trial of the election petition the appellant relied upon 15
items to show that the respondent had entered into works
contracts with the State Government, in this Court Mr. Singh
has ,confined his argument to only two items, namely, item
No. (1) and item No. (8). Item No. (1) relates to an ad-
vance of Rs. 100 for repair of Erein School. The case of
the respondent is that the above amount was received by him
as Sarpanch of Gram Panchayat Rahanj and that the said work
had to be executed by that Gram Panchayat and not by the
respondent personally. The High Court accepted the stand of
the respondent, and we find no cogent ground to take a
different view. Ex. 43 is letter dated December 3, 1968
signed by the Sub-Divisional Officer Bhadrak to the Certifi-
cate Officer for recovery of Rs. 7,017/-. This letter shows
that the aggregate sum of Rs. 7,017, of which Rs. 100 was a
part, constituted the fund of the Gram Panchayat.. Order
dated May 25, 1965 of the Block Development Officer also
shows that the work on account of which Rs. 100 were paid
had to be executed through the agency of Rahani Gram Pan-
chayat. To similar effect is the statement of PW 9 Khages-
war Roy. Block Development Officer. The evidence of this
witness shows that the amount in question was given to the
Gram Panchayat for repair work. The above material, in our
opinion,, clearly shows that the contract for the execution
of the repair work, which is the subject matter of item No.
(1 ), was not entered into with the respondent in his per-
sonal capacity and that the said work had to be. executed by
the Gram Panchayat.
So far as item No. (8) is concerned, the same relates to
work of wooden culvert No. 9 on Jamujhari Khirkona road.
Ex. 55 is the written agreement relating to this contract.
Perusal of the agreement makes it clear that the tender in
respect of this work was accepted on behalf of the Modern
Labour Co-operative Contract Society, of which the respond-
ent was the PreSident. The document thus shows that it was
not the respondent but the society which entered into con-
trac to the execution of the above work, and the respondent
signed the document in his capacity as the President of that
Society.
Apart from the above, we agree with the High Court that
the above contract was not subsisting on the date of the
filing of the nomination paper. The agreement for the
execution of the above work was dated May 8, 1964. On
November 24., 1966 an order was made by the Block Develop-
ment Officer that the construction work of the culvert had
been completed since long and final measurements too had
already been made. The total work was found to be worth Rs.
4,253.70. It was further observed in the order that Rs. 722
should be paid on account of the above work after deduct-
ing the previous advances and cost of the material. The
contractor was directed to return the material used in the
tubewell. The above order of the Block Development
55
Officer shows that the cost of the material and the amounts
advanced to tile respondent were deducted before direction
was given for payment of Rs. 722 to the contractor. Mr.
Singh has laid particular stress upon the direction in the
order of the Block Development Officer that the contractor
should return the material used in the tubewell. In respect
of the material used in the tubewell, it appears to us that
the said material was also returned by the contractor the
same day the order was made. According to the testimony of
RW 11 J.K. Satpathy Block Development Officer, if the mate-
rial required to be returned as per that last order was not
returned, the final bill amount in respect of that work
could not have been paid. Rs. 722 were, however, admittedly
paid on November 24, 1966. The factum of that payment
clearly points to the conclusion that the contractor re-
turned the material used in the tubewell before the payment
of Rs. 722 was made to him. There is also nothing to show
that any demand was made’ to the contractor subsequent to
1966 for return of the material used in the tubewell. The
absence of any such demand, even though a long period has
elapsed since 1966, clearly goes to show that no, material
used in the, tubewell remained with the contractor. It
cannot, therefore be said that the said contract was sub-
sisting on the date the respondent filed his nomination
paper. We consequently uphold the finding of the High
Court on items (1) and (8) under issue No. (3).
As a result of the above, we dismiss the appeal, but in
the circumstances without costs.
KRISHNA IYER, J., Whole-hearted is my agreement with the
judgment of my learned brother Khanna J., both in the con-
clusions and in the reasonings. This does not obviate an
extra opinion on certain deeper, though peripheral, as-
pects of the law thrown up. by the facts, disturbing in
their implications and laying bare certain gaping gaps in
the election law. In a democracy,, the electoral process
has a strategic role and in India it has constitutional
status although canalysed by the Representation of the
People Act, 1951 (hereinafter called the Act). Lord Holt
long ago observed:(1)
"A right that a man has to give his vote at
an election of a person to represent him in Parlia-
ment, there to concur to. the making of laws, which
are to bind his liberty and property, is a most
transcendent thing, and of an high nature, and the
law takes notice of it as such in divers
statutes ...... The right of voting at the elec-
tion of burgesses is a thing of highest impor-
tance, and so great a privilege, that it is a great
injury to deprive the plaintiff of it ...... "
And, if I may add,, this widespread right belongs to every
common citizen.
In such circumstances, nO one can gainsay the need for
the provisions regulating disqualifications affecting the
adult franchise to run for -elective office to be fool-proof
to that degree that the little man of India may confidently
participate in the political process without being exposed
to booby traps of the law.
Quoted in University of Pensylvania Law Review 1968 p. 24
(Vol. 117).
56
In this case an election was honestly fought and won by
the appellant but the verdict has been reduced to a Dead Sea
fruit by a surprise blow of the law because the respondent’s
nomination, on the captious objection of the defeated candi-
date (the appellant being innocent, at that stage, of rais-
ing any obstructive tactic), was illegally rejected The
facts, already set out by my learned brother, disclose
that the wrong rejection by the Returning Officer was on
the score that he had subsisting contracts with the State
Government. This ground was plausibly urge.d before the
Returning Officer by a candidate who polled poorly. The
Officer was taken in by the specious plea and rejected the
respondent’s nomination.. Its aftermath, long after the
election was fought and won, is that people’s verdict has
been stultified and its victim is the then innocent appel-
lant. Had there been any procedure for double-quick deter-
mination of objections to nominations with early appellate
finality attached to it, the lurking danger of the whole
process being ultimately baulked on account of antecedent
official error would not have arisen--a consummation devout-
ly to be wished. Nor does it require great imagination to
make provision in this behalf, but its omission has led to
the martyrdom of the appellant and the orphanage of the
electorate.
Yet another legislative insufficiency surrounding s. 9A
of the Act needs to be highlighted. This provision, as has
been explained earlier by my learned brother, disqualifies a
person from being a candidate if 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 gov-
ernment. It is followed by an Explanation which is more or
less a legal fiction. The rugged edges of ambiguity of s. 9A
especially as to how long and in what sense can a contract
be said to be subsisting envelop the disbarment provision
with subtle legal questions. The common man of India is
the .potential candidate and is he to risk his candidature
en the niceties of the law of contracts ? In this context we
must remember that the vast and various developmental works
undertaken by the State and its subsidiaries and executed
by a large number of little construction contractors made it
very desirable that the disqualificatory net should not be
cast too wide to disfranchise innumerable persons and must
be easy of ascertainment if uncertainty is not to overhang
elections in our political system. In this very case sever-
al problems were mooted, somewhat difficult to answer. How
long does a contract subsist ? Is every liability arising on
a breach of contract, a claim under the contract attracting
the lethal coils of s. 9A ? If government money is involved
in the execution of the work. does the contract necessarily
become one with government ? A host of other questions may
mystify the legal imports of the taboo s. 9A sets out and
yet every lay man is imperilled by this vague provision in
the exercise of his electoral right. Such a brooding fear
and haunting provisions is counter productive and may per-
haps have to be redrafted in the light of experience in
court. These are problems not of high-sounding law but
affecting the common man in the exercise of his most demo-
cratic right. Nietzche once said: ,The great problems are in
the streets. The inaugural error in the drawing up of our
election law, as is illustrated by this
57
case, is that sophisticated provisions amenable to logico-
linguistic feats or subtle interpretation of civil law ill
suit a regulatory area of the political process where the
small individual offers himself for electoral contest. I
choose to make these observations and draw the attention of
the concerned instrumentalities only because in my humble
view the court has an activist role to tell the nation,
through its judgment or other designated channels where the
law misfires, or how the law stands in need of reform. This
case therefore induces me to make what may be regarded as
obiter:
"The little case, the ordinary case, is a
constant occasion and vehicle for creative choice
and creative activity, for the shaping and on-going
reshaping of our law."(1)
More than a hundred years ago Lord Chancellor
Westbury made certain seminal observations(2):
"The first thing, then, that strikes every
member of our profession who directs his mind
beyond the daily practical necessity of the cases
which come before him is, that We have no machinery
for noting, arranging, generalising and deducing
conclusions from the observations which every
scientific mind could naturally make on the way in
which the law is worked in the country ......
Take any particular department of the common
law--take, if you please, any particular stat-
ute. Why is there not a body of men in this country
whose duty it is to collect a body of judicial
statistics, or, in the more common phrase, make the
necessary experiments to see how far the law is
fitted to the exigencies of society, the necessi-
ties of the times, the growth of wealth, and the
progress of mankind ? .... "
Way back in 1921,, Benjamin N. Cardozo, then a
Judge of New York’s highest court, said :(3)
"The Courts are not helped as they could and
ought to be in the adaptation of law to justice.
The reason they are not helped is because there is
no one whose business it is to give warning that
help is needed ....... We must have a courier who
will carry the tidings of distress ...... To
day courts and legislature work in separation and
aloofness. The penalty is paid both in the wasted
effort of production and in the lowered quality of
the product. On the one side, the judges, left to
fight against anachronism and injustice by the
methods of judge-made law, are distracted by the
conflicting promptings of justice and logic, of
consistency and mercy, and the output of their
labors bears the token of the strain. On the other
side, the legislature, informed only casually and
intermittently of the needs and problems of the
courts, without expert or responsible or disinter-
ested or systematic advice
(1) Quoted in (1961-62) Vol. 71 Yale Law Jownal p.
259.
(2) Quoted in Vol. 128, Mod. L.R.p. 1.
(3) Address to the Association of the Bar of the
City of
New York quoted in (3) supra.
6--1003 SCI/76
58
as to the workings of one rule or another, patches
the fabric here and there, and mars often when it
would mend. Legislature and courts move on in proud
and silent isolation. Some agency must be found to.
mediate between them."
May be, as has been done in the State of New York, the
establishment of a Law Revision Commission charged with
comprehensive law reform duties with direct link with the
law court may go a long way to meet the felt need.
P.B.R.
59