Lokanath Padhan vs Birendra Kumar Sahu

R.N. Misra, J.—This application u/s 100(1) of the Representation of the People Act, 1951 (hereinafter referred to as me Act) seeks to

challenge the election of the respondent to the Orissa Legislative Assembly from the Melchhamunda Constituency of the district of Sambalpur.

The last date for filing of nomination papers was 7-2-1971. Nomination papers were scrutinised on 9-2-1971. Objection was raised to the

acceptance of the nomination paper of the respondent on the ground that he was disqualified u/s 9A of the Act. The Returning Officer overruled

the objection and accepted the nomination paper of the respondent. Election was held on 5-3-1971 and the result of election was announced on

11-3-1971 declaring the respondent as duly elected. The election petition was Bled on 20-4-1971 challenging the election of the respondent on

the ground that he was disqualified from being chosen as a member of the Legislative Assembly.

In paragraph 2 of the election petition it has been stated that on the date of nomination the respondent had subsisting contracts with the

Government of Orissa in respect of the following works executed within the Gaisilet Panchayat Samiti:--

(a) Construction of package village level worker''s quarters at Gaisilet;

(b) Construction of the lady village level workers quarters at Borumunda;

(c) Construction of the community recreation centre at Borumunda;

(d) Construction of the Borumunda Canal;

(e) Construction of the Mahila Samiti building at Borumunda.

It is contended that the respondent was disqualified on that account from being a Member of the Orissa Legislative Assembly.

The respondent, on the other hand, has contended that there was no contract or subsisting contract with the State Government of Orissa making

him disqualified for being chosen as a Member of the State Legislature. It has been further contended that the contracts in question were not

entered into by the respondent in his individual capacity or in course of his trade or business, and he never derived any pecuniary benefit from the

works. As such the respondent did not incur any disqualification u/s 9A of the Act. The respondent also alleged that the election petition was liable

to be dismissed u/s 83(1)(a) of the Act as a concise statement of the material facts upon which the petitioner sought to rely was absent in the

petition.

On the pleadings the following issues were framed:--

Issues

(1) Is the election petn. maintainable?

(2) Is it liable to be dismissed for non-compliance of Section 83(1)(a) of the Representation of the People Act?

(3) Had the respondent entered into any contract with the State Government and in case there was such contract, was it in his individual capacity in

course of trade or business?

(4) Was the respondent disqualified u/s 9A of the Representation of the People Act from contesting the election on the date of nomination?

(5) Is the election of the respondent, void?

The petitioner examined 5 witnesses in all including himself. The respondent examined 4 witnesses in all inclusive himself. On behalf of the

petitioner Exhibits 1 to 24 have been marked and on behalf of the respondent Exhibits A to A/b have been marked. During hearing of the

arguments of the election petition, Mr. Basu for the petitioner conceded that of the five contracts alleged to be subsisting items (a) and (d), namely,

construction of package village level worker''s quarters and construction of Borumunda Canal may be omitted from consideration. The petitioner

thus confines his contention in regard to the alleged contracts relating to items (b), (c) and (e) of paragraph 2 of the election petition. I shaft now

proceed to deal with the various issues.

Issue No. 1.--Though such an issue was raised on the pleadings in the written statement, this issue has not been pressed during trial. I would

hold that the election petition which has been filed on a tenable allegation and within the period of limitation is maintainable. The issue is answered

in favour of the petitioner.

Issue No. 2.--It is contended that the election petition suffers from want of allegations of material facts on which the election of the respondent is

assailed. Section 83(1) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner

relies. In paragraph 5 of the written statement it has been said:

That the petition does not contain ft concise statement of material facts on which the petitioner relies as envisaged u/s 83(1)(a) of the

Representation of the People Act, 1951. A complete cause of action not having been pleaded, the petition is a defective one which disentitles the

petitioner to lead any evidence in support of the vague pleas taken by him and the petition cannot be considered to be an election petition at all in

the eye of law,

In support of this stand in the written statement four decisions of their Lordships of the Supreme Court are pressed into service. Those are: AIR

1964 SG 1249 (Ram Sewak v. H.K. Kidwai), Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, ; Samant N. Balkrishna and Another Vs. V.

George Fernandez and Others, and Shri Jitendra Bahadur Singh Vs. Shri Kirshna Behari and Others, . These cases were mostly concerned with

grant of inspection of ballot papers or a recount thereof. In Balkrishna''s case their Lordships, however, said:

The word ''material'' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact

leads to an incomplete cause of action and the statement of claim becomes bad.

They had also said:

Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts

relating to ft corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action. . . .

The entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to

complete the picture.

The question for consideration in this case is as to whether what has been disclosed in the election petition is sufficient or falls short of the

requirements of Section 83(1)(a) of the Act, while the mandate of the statutory provision is clear in a given case what constitutes compliance would

depend upon its facts. In the present case the allegations are simple, namely, the respondent had entered into contracts with the State Government

of Orissa in course of his business and those were subsisting. Five such contracts were referred to. Details in respect of the contract relating to the

construction of the Mahila Samiti were provided. As the respondent has rightly indicated in his written statement, these were essentially matters of

record and the respondent is not a stranger to these contracts. Statute u/s 83(1)(a) of the Act has made the provision in order that the pleadings

may be clear, the respondent who is normally the returned candidate may not be taken by surprise and the entire truth in relation to the matter may

be brought out. The provision in Section 83(1)(a) is on the footing of a rule against prejudice, I do not consider in the present case the allegations

in the election petition to be so deficient as to cause prejudice to the respondent. Keeping in view the facts of this case I would hold that the

petition does not suffer from non-compliance of the statutory requirement of Section 83(1)(a) of the Act and as such it is not liable to be dismissed.

This issue is answered in favour of the petitioner.

Issues 3 and 4.--These issues may be taken up together because they are really common. The petitioner''s allegation has been that the

respondent was disqualified in terms of Section 9A of the Act and yet notwithstanding the objection of the petitioner the Returning Officer

accepted his nomination and the respondent ultimately participated in the election and got returned and as such his election is liable to be annulled.

This requires a detailed examination of the provisions of Section 9A of the Act. For convenience that section may be extracted;

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.

Four ingredients are necessary to give rise to the disqualification. They are--(a) there must be a contract between the respondent and the

appropriate Government, i.e., the State Government of Orissa, (b) such contract must have been for supply of goods to, or for the execution of

any works undertaken by, the State Government, (c) such contract must have been in course of the respondent''s trade or business, and (d) such

contract must be subsisting on the date the respondent gave his nomination.

After India became independent, for all-round development of the country, five-year plans were undertaken. During the Second Five-Year

Plan which began after March 1956, National Extension Service Blocks were extended throughout the country with a view to enlisting

participation of the people in the planning and executing of rural schemes of planned development. Development of panchayats as institutions

actively responsible for village development was one of the items approved for implementation. It was during the Second Five-Year Plan period

that a block was established at Gaisilet in the district of Sambalpur sometime in 1958.

A grama panchayat was also in the existence in the area constituted under the Orissa Grama Panchayats Act (15 of 1948) by then. The

principle of decentralised administration and development of Panchayati Raj led to passing of the Orissa Panchayat Samiti and Zilla Parishad Act

(7 of 1960). At the district level the Zilla Parishad, at the Rlock level the Panchayat Samiti and as the primary unit the Grama Panchayat were

intended to be in charge of rural administration and development. Accordingly, a three-tier system was introduced. The Grama Panchayat, the

Panchayat Samiti and the Zilla Parishad were intended to function from the village level to the district level within their defined assignment. It is in

evidence in this case that the Panchayat Samitis came to be formed in 1961.

The respondent was a member of the Gaisilet Grama Panchayat from 28-2-1952 upto 1966. It is in his evidence as R.W. 4 and has not been

challenged that he became Naib-Sarpanch of that Grama Panchayat with effect from 25-2-1959.

These works with which we are concerned began sometime in 1960. The construction of the Mahila Samiti building seems to have been the

first to be undertaken in point of time. Next came the construction of the lady village level worker''s quarters sanction for which was accorded on

23-10-1960, vide Exhibit 2. The community recreation centre began almost simultaneously, but as it appears the first advance for it under Exhibit 8

was drawn from the treasury on 12-11-1960. It would be convenient to deal with each of these works independently. [After considering the

evidence relating to the works his Lordship proceeded.

14-17. The petitioner has led evidence to show that the respondent was a contractor by occupation and near about the time when these works

were undertaken by the respondent he was doing the job of a contractor. According to the petitioner these were works taken from the Block by

the respondent in course of his trade or business, while according to the respondent these were entrusted to the Grama Panchayat and as a

representative of the Grama Panchayat, he had undertaken the works.

There is no dispute that the Block was entirely a Government organised institution and the Block fund consisted of Government funds. Under

Orissa Act 7 of 1960 Panchayat Samities were constituted. Section 15 of that Act provides:

(1) The Government shall, by notification, divide each district into such number of local areas as they deem fit. Each such area shall be known as a

Block and be given such name as may be specified in the said notification.

(2) Government may from time to time by notification re-delimit any local area referred to in Sub-section (1) by-

(i) excluding from such local area any Grama; or

(ii) including in such local area any Grama contiguous thereto, and may alter the name given to such local area.

(3) On the issue of a notification under Sub-section (2) the duties and responsibilities for the execution of development works and all assets and

liabilities in respect of such works within the Grama shall, subject to the rules, if any, made in that behalf be adjusted and apportioned as between

the concerned Samitis in such manner as the Collector may direct and in the case of any dispute the decision of Government thereon shall be final. .

. .

It is the stand of the respondent that these works which had begun at the time when the Block was functioning and the Panchayat Samiti had not

come into existence were taken over by the Panchayat Samiti and came to be regulated by the Samiti thereafter. Under Orissa Act 7 of 1960 the

Panchayat Samiti is a body corporate (vide Sections 4(2) and 17). Chapter IV of the Act constituted the Panchayat Samiti Fund. Section 28(1)

provided:

All moneys received by a Samiti shall constitute a fund called the ''Panchayat Samiti Fund''. The Fund shall vest in the Samiti and shall be applied

for the purposes specified in this Act and for such other purposes and in such manner as may be prescribed.

Section 20(1) provides for the various sources of income of a Panchayat Samiti and item (ii) indicates that the fund relating to the Community

Development Programme as one such source. It has been the contention of the respondent that in the new setup after the advent of the Panchayat

Samiti, the works were taken over by the Samiti and ceased to be works of the State Government. It has also been contended that the money

came from the Government of India and the State was only the implementing agency.

In Bhagwan Singh Vs. Rameshwar Prasad Sastri and Others, their Lordships of the Supreme Court dealt with a case of this type. Execution of

five works under the Local Development Works Programme envisaged under the Second Five-Year Plan formulated by the Government of India

was set up as disqualification of the elected candidate. The respondent in the election petition Bad taken the stand that he had executed those

contracts as the Mukhia of the village panchayat. In such background their Lordships said:

The Second Five-Year Plan published by the Planning Commission in 1956 shows that the programme of starting these works was treated as a

part of the co-operative movement and the Commission had therefore recommended that the States were to sponsor and assist actively in the

organisation and development of village panchayats which was an important constituent of the programme of fostering corporate life in the rural

areas as it would promote among the rural community active interest in the development programmes of the villages. The object of this programme

which would operate in areas not yet reached by the National Extension Service was to enable village communities to undertake works of local

benefit mainly with their own labour. The Commission realised that the resources of all the States taken together would fall far short of the

requirements of this Plan and so it recommended large transfers of resources from the Centre to the States. In this connection the conclusion of the

Commission was that out of Rs. 200 crores sanctioned for the year 1957-58, 12 crores would be required for the Centre for schemes under-

taken or directly sponsored by the community project administration and Rs. 180 crores were to form part of the balance for the States. Thus it is

obvious that the basic idea underlying the Plan was to evoke popular response to the community projects undertaken in pursuance of the Plan and

to leave the execution of different works adopted under the Plan to be fulfilled by popular local agencies like Village Panchayats.

This policy was emphasised by the Secretary of the Planning Commission in his communication to all State Governments, No. PC/Pub/52/53

dated 11th August, 1938 (H. 1). This communication set out the seven categories of work which were most suitable for assistance and it said that

the local contribution in cash or land or through voluntary labour together with any contribution that the State Government or a local body might

make should be a minimum of 50 per cent of the total cost of each work. The intention was to spread the benefit over as wide an area and to as

many people as possible. The State Governments were accordingly requested to arrange for a detailed scrutiny of the schemes before they were

accepted and for making adequate provisions providing for their proper execution. They were also required to nominate a liaison officer for each

district or other suitable unit for the purpose of checking the execution of the works and for maintenance of such initial accounts as might be

necessary. This communication makes detailed provisions about financing and accounting procedures to be followed and required the State

Governments to make progress reports from time to time.

Their Lordships examined at length the procedure followed for the execution of the works and ultimately concluded:

Consistently with the general policy of the Plan, the Village Panchayat became a sponsoring agent and hoped and expected to obtain popular

response from the villagers who would contribute their labour and thus make up the 50 per cent of the cost of the intended work. Therefore, in our

opinion, if the contract in question is considered in the light of the background of the Plan, of which it forms one item, and all its conditions are

taken into account together, there can be no doubt that the appellant as the Mukhiya of the Village Panchayat acted as its agent when he signed the

contract and not as an individual acting in his personal capacity.

Their Lordships then referred to the various records maintained in the Village Panchayat in respect of these contracts and reiterated their finding by

saying:

Our conclusion, therefore, is that the four impugned contracts have been executed by the appellant as the Mukhiya of the Village Panchayat just in

the same way as he had executed the school contract as the Secretary of the Vidyalaya in question. That being so, Section 7(d) cannot be invoked

against him.

The materials on record in this case clearly show that these three works were undertaken by the respondent as a local leader and in his capacity as

Naib-Sarpanch representing the Grama Panchayat. These are not works which were undertaken in his own name as an individual but were on

behalf of Grama Panchayat in terms of the scheme envisaged by the Plan. The oral evidence in this case need not be overemphasised particularly

because the documents on record seem to cover all aspects of the case and are more reliable than the oral evidence.

Mr. Basu contended that these works had begun before the Samiti came into existence and in respect of the amounts advanced by the Block

before the formation of the Samiti separate accounts were maintained and a different dealing was meted out. The evidence in that behalf is not very

clear and even if it were so, there is evidence to justify that even from the Block the works had been entrusted on the same basis as has been

indicated by their Lordships of the Supreme Court in the aforesaid case.

It has transpired from the evidence of P.W. 3, the B.D.O. of Gaisilet between October 1969 and November 1971, that Block fund accounts

are being sent to the Accountant-General of Orissa in form of D.C. bills while expenditures made from the other fund are accounted for to the

Department itself. This position has not been challenged by the respondent. R.W. 1, the Deputy Secretary to Government in that Department, has

also said similarly in paragraph 5 of his deposition, That, however, is really no basis to determine the nature of the contract. From the statutory

provisions which I have already referred to as also the deposition of R.W. 1 and some other witnesses it is clear that the pending works assigned

by the Block were taken over by the Panchayat Samiti of the area. The Panchayat Samiti became responsible for execution of such work

thereafter. Further moneys in respect of such work were really spent out of the Samiti fund. This is an important feature to determine whether

works assigned by the block remained separately and distinct from works of the Samiti or became integrated with the Samiti''s activities and

became really a part of the new system. Viewed from any angle, it is difficult to hold that merely because the Block had placed orders these three

works continued to be works of a different type than those which were for the first time commenced by the Samiti.

The respondent may have been a contractor otherwise, but in respect of these contracts he did not undertake the works as a part of his trade.

These must be differently classified. I would accordingly hold that the respondent had not entered into contracts with the State Government in

course of his trade pr business.

It has been contended on behalf of the respondent that once certificate proceedings were taken, the contracts must be taken to have been

determined and cannot be treated to be subsisting. I am not prepared to accept such contention in its bald form. It is also contended that the

contracts had already been completed and merely because payments had not been made they cannot be taken to be subsisting. Oral evidence has

been led to support such a stand. R.Ws. 2 and 3 have been called to support such stand. R.W. 2 is the preceding Sarpanch who was in office

from 1955 till 1967. R.W. 3 is the sitting Sarpanch. Both of them have come to support the stand that each of the works was over though the

matter had not been finalised. The petitioner was the Chairman of the Panchayat Samiti for quite a number of years and has been replaced by his

son. It is alleged that they have been responsible for not finalising these matters though the contract works are really over. It is difficult for me to

discard the evidence of R.Ws. 2 and 3. On their evidence it must be held that the construction had been completed in these three works and the

rest of the matter has not been finalised. Thus it would be a case which would be covered by the Explanation to Section 9A of the Act. There is

some evidence to show that the alleged disqualification of the respondent was in existence even in 1967, but in spite of it he had got elected to the

State Legislature. No objection had been taken throughout the period the respondent was a sitting Member of the Legislature. That, however, is

not a very important feature to determine the dispute now raised. I would accordingly hold that the respondent had not engaged himself in

execution of contracts in course of his trade or business with the State of Orissa and at any rate the said contracts were no more subsisting at the

time the respondent filed his nomination for fee mid-term poll in 1971.

Issue No. 5.--The only ground upon which the election of the respondent was challenged was that he was disqualified u/s 9A of the Act. In

view of what I have found above it would follow that the respondent was not so disqualified. Accordingly, the election petition must fail and the

petitioner is not entitled to any relief.

The election petition is dismissed. The respondent shall have his costs which I assess at Rs. 500 (five hundred).