Ranjeet Singh vs Harmohinder Singh

R.L. Anand, J.—Shri Ranjeet Singh son of Jagdev Singh resident of village and Post Office Talwandi Rai, Tehsil Raikot, District Ludhiana, has filed the present election petition under Part VI of the Representation of People Act, 1951 (hereinafter referred to as ''the Act'') challenging the election of respondent Harmohinder Singh Pradhan son of S. Kartar Singh, M.L.A. Raikot Tehsil Raikot, District Ludhiana, from Constituency No. 54, i.e. Raikot Assembly Constituency.

Shri Ranjeet Singh has staled in the petition that he was a candidate set up by the Sharomani Akali Dal from Constituency No. 54 i.e. Raikot Assembly Constituency in the general elections held on 7th February, 1997, and respondent Shri Harmohinder Singh Pradhan was put up as a candidate by the Indira National Congress and the respondent was declared elected. The polling took place on 7th February, 1997 and the counting took place on 9th February, 1997. The result was declared on 17th February, 1997 and the respondent was declared elected. According to the allegations of the petitioner, the respondent was disqualified from contesting the election to the Punjab Vidhan Sabha u/s 9-A of the Act as on the date of filling of the nomination papers as well as on the date of scrutiny of nomination papers, i.e. 20th January, 1997 and 24th January, 1997, respectively, as he had a subsisting contract for the sale of liquor from the Punjab Government, which he obtained in partnership with others by bidding at the auction held for liquor vends for the year 1996-97. He was a partner in the liquor vends for Indian Made Foreign Liquor/Country Liquor in partnership with others for Sarma Group No. 1 and Group No. 11 Patran in Patiala District. The respondent was also a partner in liquor vends in Pakhowal and Raikot in District Ludhiana. At the lime of auction of the vends, the respondent was the main bidder. However, he mentioned other partners and he along with other partners held the contract with the State of Punjab for the sale of Indian Made Foreign Liquor/Country Liquor for the year 1996-97. The contract with the State Government was subsisting on the date of nomination and on the date of scrutiny and the contract would subsist till 31st March, 1997, under the contract the respondent along with six partners was bound to pay the bid money in instalments to the State of Punjab and as a consequence the respondent along with other partners could operate the liquor vends as mentioned in the bid documents as well as the agreement signed with the State of Punjab/Government-the Department of Excise and Taxation.

With the above averments, the petitioner has prayed that the election of the respondent to the Punjab Legislative Assembly from Raikot Assembly Constituency No. 54 he declared void.

Notice of the petition was given to respondent Shri Harmohinder Singh Pradhan, who filed written statement and denied the allegations. He also took preliminary objection that the election petition was not maintainable as the same did not disclose the violation of Section 9-A of the Act. According to this Section, a person shall be disqualified, if he has subsisting contract with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by that Government. The election petition did not contain any allegation that the respondent had entered into a contract with the Government either for the supply of goods or for the execution of the works undertaken by the Government and as such, the respondent had not incurred any disqualification as provided in Section 9-A of the Act. It was also pleaded by the respondent that the contract was not at all covered under the provisions of Section 9-A of the Act. The petitioner has wrongly intermixed the whole issue. The contract for the sale of the liquor is, in fact, governed by the Punjab Excise Act 1914, and under the rules framed under that Act from lime to time. The licence for the sale of liquor is granted by way of open auction for one year, i.e. from April 1 to March 31. The license is granted to the highest bidder in the said open auction and he is allowed to sell the liquor in that particular area for one year. As per the provisions of the Punjab Excise Act, 1914, and the Rules framed thereunder, the licensee is to pay the license fee and the excise duty and price of liquor and then, he sells the said liquor to the public. In these circumstances, it is clear that the licence granted by the Excise Department for the sale of liquor, does not come within the ambit of Section 9-A of the Act as the same is neither for the supply of the goods to the Government nor for the execution of works undertaken by the Government. Unless the contract clearly falls within the four corners of Section 9-A of the Act. the Respondent could not be held to be disqualified for being chosen as a member to the State Legislature. On merits also the respondent had denied the allegations of the election petition and his preliminary defence has already been incorporated by me in the above portion of this judgment and I need not reiterate the stand of the respondent which has been taken up by him in the body of the written statement.

The petitioner has filed replication to the written statement of the respondent, in which he reiterated his allegations made in the petition by denying those of the written statement. According to the petitioner, one of the Primary Works undertaken by the Government is the collection of revenue. Through the sale of liquor vends by public auctions and thereby entering into contract with the respondent for execution of the work of collection of revenue from the sale of liquor, the respondent had a subsisting contract with the Punjab State Government. He had entered into a contract by purchasing the liquor vends. He sells the liquor at the liquor vends and collects the revenue himself and in return pays the contracted revenue to the State Government. As such the respondent is having a subsisting contract with the State of Punjab for the collection of the revenue on behalf of the State, as such the respondent is disqualified from contesting the election u/s 9-A of the Act.

From the above pleadings of the parties, the following issues were framed for the disposal of the election petition:-

"1. Whether the respondent had subsisting contract for the sale of the liquor from the Punjab Government obtained in partnership for the year 1996-97 at the time of the filing of the nomination papers and on the date of the scrutiny of the nomination papers as alleged in Para No. 3 of the election petition and if so, to what effect? OPP.

Whether the election petition is not maintainable in view of the objections raised in Paras No. 1 and 2 of the Preliminary Objections?

Whether the election of the respondent to the Punjab Assembly from 54-Raikot Assembly Constituency-is void for the reasons stated in the petition? OPP.

Relief."

In support of his case the petitioner Shri Ranjeet Singh has appeared as his own witness as P.W.1 and he also examined Shri S.K. Rahlon, Deputy Excise and Taxation Commissioner, Ferozepur Division, P.W.2, and Shri H,S. Ghai, Joint Excise and Taxation Commissioner, Punjab, as P.W.3. In rebuttal, the respondent Shri Harmohinder Singh appeared as his own witness as R.W.I. The documentary evidence which has been relied upon by the petitioner is various bid-sheets of different liquor vends, which were auctioned in favour of the respondent in the auction which was held on 11th March, 1996, and I shall make a brief mention of oral and documentary evidence in the later portion of this judgment.

I have heard the learned counsel for the parties and with their assistance, have gone through the record of this case and my findings on the above issues are as follows :-

Issues Nos. 1 and 2 :

In the opinion of this Court both the issues are inter-linked and can be disposed of under one head. The onus of issue No. 1 was placed on the petitioner, while the onus of issues No. 2 was placed on the respondent.

The petitioner has given challenge in the present petition to the election of the respondent by placing reliance on Section 9-A of the Act and in these circumstances would like to incorporate in Verbatim the said provisions in order to appreciate the contentions of the parties:-

"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.

Explanation.- For the purpose 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.

Now it is to be seen what has been pleaded by the petitioner in the election petition and what was required to be pleaded by him. In para no. 3 of the election petition it has been stated that the respondent had subsisting contract for the sale of liquor from the Punjab Government, which he obtained in partnership with others by bidding at the auction held for liquor vends for the year 1996-97. In para No. 6, it has also been pleaded by the petitioner that the respondent along with other partners was bound to pay bid money in instalments to the Slate of Punjab and as a consequence he and his partners could only operate the liquor vends. Thus, it will be seen that what was required to be pleaded in the light of the provisions of Section 9-A of the Act was not pleaded in the election petition. This part of the case was categorically denied by the respondent. Then the petitioner started saying in the replication that the respondent started selling the liquor at liquor vends and in this manner he collected the revenue himself and in return paid the contracted revenue to the State Government and as such the respondent was having a subsisting contract with the State of Punjab for the Collection of revenue on behalf of the State. In this manner the respondent stood disqualified from contesting the election. Even if it is held that replication is part of the pleadings of the petitioner, still it has to be seen by this Court whether the respondent stood disqualified in order to contest the election in view of Section 9-A of the Act.

While appearing as P.W. 1 Shri Ranjeet Singh deposed that the respondent (Shri Harmohinder Singh) was a liquor contractor and he was also working as a liquor contractor at the time when he filed the nomination papers and on the day of its scrutiny as well as on the day of the election. The liquor vends of the State are auctioned by the State in order to earn revenue. These liquor vends are finally auctioned in favour of the highest bidder. In case the State decides not to auction the liquor vends it has the power to run them by itself. In the cross-examination a suggestion was put to the petitioner that the respondent did not supply any goods to the Government as a liquor licensee and that the respondent was not supplying any goods for the execution of any work undertaken by the State Government. It has come in the statement of P.W.2 Shri S.K. Rahlon that the liquor vends of Raikot and Pakhowal (District Ludhiana) for the year 1996-97 were auctioned on 11th March, 1996. The tenure of these liquor vends was for one year, which was to start with effect from 1st April, 1996, upto 31st March, 1997. The bid was accepted in favour of Arjun Singh, Harmohinder Singh and 10 others vide Exhibits A-1 and A-2 and all the 12 persons signed the bid-sheets on behalf of the successful bidders. It has also been stated by this witness that in the State of Punjab the Government collects the revenue by way of auction money, duties and fees. If the State Government so desires, it may run the liquor vends at its own level and can earn profit. When the Government auctions the liquor vends in favour of an individual, it gives its right to sell liquor to that individual. The Government gives liquor vends after obtaining fixed yearly licence fee. If the bidder fails to pay the licence fee to the State, his licence can be cancelled and the liquor vend can be re-auctioned or the State can run the liquor vends at its own level for the remaining period or can give the liquor vends on commission basis also. In the cross-examination this witness has stated that a successful bidder is under obligation to pay the licence fee to the Government irrespective of fact whether he earns profits or runs into losses.

He can pay the licence fee in lump sum or in instalments. As per the agreement arrived at between the State and the successful bidders, it is the Stale which is under obligation to supply liquor to the licencee. On the contrary, contractors/successful bidders arc not supposed to supply any goods to the State Government as a liquor licencee. This witness has also admitted that under the agreement the licencees of liquor vends are not suppose to do any execution work undertaken by the State Government as liquor licencee. It has also been admitted by this witness that the respondent has never taken any amount from the Government treasury. Rather the State collects the licence-fee for the successful bidders. It has also been stated by this witness that he has been working in the Department since 1974 and there has been no occasion since 1974 when the state decided to run the liquor vends at its own level. Shri H.S. Ghai, P.W. 3 proved the bid-sheets Exhibits A3 and A4 while stating that Shri Harmohinder Singh respondent was one of the licencees of the liquor vends mentioned in the bid-sheets along with his other partners. In the cross-examination this witness also admits that the licence is issued in favour of the successful bidders in accordance with the terms of the auction. Shri Harmohinder Singh and co-partners never supplied any goods to the Government as a liquor licencee and a liquor licencee does not supply any goods for the execution of the work undertaken by the Punjab Government. It has also been admitted by this witnesses that the State Government only collects the licence-fee and the Government does not pay anything to the contractor. Also there is an admission on the part of this witness that ever since he joined the Department, the Government had not run the liquor vends at its own level. Rather the normal mode of giving liquor vends is by way of auction to the highest bidders.

Shri Harmohinder Singh while appearing as his own witness as R.W. 1 admits that he was one of the partners of liquor licence for the year 1996-97 of Samana, Patran in Patiala, District and Raikot, Pakhowal in Ludhiana District. However, he states that the licencee is not supposed to supply anything under the licence to the Government and the licencee docs not get any payment from the Government and that the State Government had never run liquor vends at its own level. In the cross-examination it is stated by this witness that a liquor licencee takes delivery of liquor after getting permits from the authorities of Government and after making payment of excise duty. In case, a licencee wants to take the delivery of Indian Made Foreign Liquor, he is not supposed to deposit the excise duty as it is already paid by the manufacturer. Before, taking delivery of the Indian Made Foreign Liquor, the licencee is supposed to make the payment of the permit fee before getting the actual permit.

With the above oral and documentary evidence now it is to be seen what has been proved on the record and what was required to be proved on behalf of the petitioner. It is established from the oral and documentary evidence led by the petitioner as well as by the respondent that Shri Harmohinder Singh was one of the licencees with his co-partners in a few of the liquor vends forming part of Patiala and Ludhiana Districts. His contract was for a year starting from Ist April, 1996 to 31st March, 1997. In this regard I have to see what is the procedure. A liquor circle is sold by the Government in order to collect revenue. The licence is granted to the highest bidder so that he may be able to sell the liquor for one year in a particular circle and the quantity of the liquor to be sold by such contractor is also fixed for that particular year. Through this licence granted to a liquor licencee, the Government does not delegate its powers for the execution of any work, which is supposed to or required to be undertaken by that Government. The object of Section 9-A of the Act is intended to ensure that there is no occasion for a conflict between the public duty and the private interest. The disqualification u/s 9 of the Act comes into play only if the petitioner establishes.

(i) a subsisting contract between the appropriate Government and the candidate;

(ii) the contract must be in the course of business or trade;

and

(iii) finally it must be inter alia for the supply of goods to such Government or for the execution of any works, which is undertaken by that Government.

If the evidence led by the parties is read in the light of the above three ingredients, only the following facts stand established that there was a subsisting contract between the Government and the respondent when the Government decided to grant liquor licence to the respondent and his co-partners of same of the circles of Patiala and Ludhiana Districts and this aspect of the case is also admitted by the respondent himself. So far as the third and the most important ingredients of the disqualification is concerned, it is totally not established. It has been even admitted by P.W. 2 and P.W. 3 that under this agreement between the State Government and the liquor licencees the liquor licencees do not supply any goods to the State Government. Only the Government collects the licence-fee which can be paid by the contractor in lumpsum or by way of instalments. The Government does not bestow any licence to the respondent to auction the liquor vends on its behalf and collect the land revenue and then deposit in the Treasury nor the Government passes on any consideration to such supposed person in lieu of the land revenue which might be collected by such person on behalf of the Government. After getting the licence from the State Government, the licencee sells the liquor after getting it from the recognised source of supply and after getting a permit from the State Government. Such licencee pays the price of the commodity to the manufacturer or the supplier and then sells the liquor to the various consumers. From these activities, which are undertaken on the part of the liquor licencee it cannot be said by any stretch of imagination that such liquor contractor supplies any goods to the Government or he Undertakes the execution of any work which is supposed to be performed by the State Government.

An effort has been made from the side of the petitioner to convince this court that the respondent sells the liquor at liquor vends and collects the revenue himself and in return pays the contracted revenue to the State Government and as such the respondent is having subsisting contract with the State of Punjab for the Collection of the revenue on behalf of the State. The submission of the petitioner is fallacious. It is not contract between the Government and the licencee for the collection of the State revenue. The Government lives on income and the State revenue is the major source of income of a particular State Government. In order to collect the revenue to run the Government, certain licences and concessions are given to the individuals so that they may Undertake some activities, such as selling of liquor and excavation of mines etc. The licencee is supposed to pay, in these circumstances, only the licence-fee to the Government whether in lumpsum or in instalments. The Government gives the concession to the licencee that he can pay the agreed amount of licence-fee in various instalments as we all as know that sometimes that licence-fee is so large and huge that it may be difficult for the licencee to pay it in lump sum. The licencee does not collect the revenue for the State. He collects the price of the goods which he sells under licence. The prices of the goods cannot be equated with the revenue though through the profits on sale of goods the licencee pays the agreed revenue to the State Government. This is the patent distinction which is not being appreciated by the petitioner u/s 9-A of the Act. It cannot be said by any stretch of imagination that the respondent under the licence granted to him had undertaken any work or the execution of any work undertaken by the State Government. The duties of the State Government had finished when it auctioned the liquor vends against a particular licence fee. In case the licencee fails to pay the amount, the State Government has a right to collect the amount by way of land revenue. It can even stop the licencee from selling the liquor in a particular zone and then can re-auction the liquor vends for the remaining period or the State Government itself can Undertake to run a liquor vend for the remaining period. The State Government even can Undertake to run the liquor vends by its own agencies. In this case, the State Government did not opt to run the liquor vends at its own level. It opted to give the licences to the various persons through auction and for its own convenience, opted to realise the licence money by giving licences to the prospective bidders. When the highest bidder after getting licence, sells the commodity of liquor against consideration to the various consumers, such licencees does not collect the revenue for the State Government. Rather he collects the price of the goods and discharges its obligation under a contract for the payment of the licence-fee.

Learned counsel for the petitioner by referring to the provisions of Sections 20, 21, 22, 26 and 27 of the Punjab Excise Act, 1914, submitted that the sale of liquor is the absolute monopoly of the State and by granting licence in favour of the respondent for a particular year, it had leased its right of sale of liquor to the respondent and in this manner, the respondent was aiding and helping the State Government for the execution of any work undertaken by the Government or which could be undertaken by the Government and in these circumstances the disqualification of Section 9A of the Act is applicable.

Before I proceed further with the submission raised by the learned counsel for the petitioner, I would like to quote the provisions of Sections 20, 21, 22, 26 and 27 of the Punjab Excise Act as follows:-

"20. Manufacture of intoxicants prohibited except under the provisions of this Act:-

(a) No intoxicant shall be manufactured or collected;

(b) no hemp plant shall be cultivated,

(c) no tari-producing tree shall be tapped;

(d) no tari shall be drawn from any tree, and

(e) no person shall use, keep or have in his possession, any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari.

Except under the authority and subject to the terms and conditions of a licence granted in that behalf by the Collector.

(2) No distillery or brewery shall be constructed or worked except under the authority and subject to the terms and conditions of a licence granted in that behalf by the Financial Commissioner u/s 21.

"21. Establishment or licensing of distilleries and breweries. The Financial Commissioner, subject to such restriction or condition as the State Government may impose may,-

(a) establish a distillery in which spirit may be manufactured under a licence granted u/s 20.

(b) discontinue any distillery so established.

(c) licence the construction and working of a distillery or brewery.

(d) make rule regarding-.

(1) the granting of licences for distilleries, stills or breweries;

(2) the security to be deposited by the licencee of a distillery or brewery;

(3) the period for which the licence shall be granted ;

(4) the inspection and examination of such distillery or brewery and the warehouses connected therewith and of the spirit or fermented liquor made and stored therein;

(5) the management and working of the distillery or brewery;

(6) the form of accounts to be maintained and the returns to be submitted by the licencee;

(7) the upkeep of buildings and plant;

(8) the size and description of stills and other plants;

(9) the manufacture, storing and passing out of spirit and contents of passes;

(10) the prices to be charged by the licencee;

(11) any other matters connected with the working of distilleries or breweries."

Establishment of licensing of warehouses.

The Financial Commissioner, subject to such restrictions or conditions as the State Government may impose, may :-

(a) establish or licence a warehouse wherein any intoxicant may be deposited and kept without payment of duty.

(b) discontinue any warehouse so established."

"26. Sale of intoxicants;- No liquor shall be bottled for sale and no intoxicant shall be sold except under the authority and subject to the terms and conditions of a license granted in that behalf provided that -

(1) a person licensed u/s 20 to cultivate and hemp plant may sell without a licence those portions of the plant from which any intoxicating drug can be manufactured to any person licensed under this Act to deal in the same or to any officer whom the Financial Commissioner may appoint in this behalf;

(2) a person having the right to the tari drawn from any tree sell the same without a licence to a person licensed to manufacture or sell tari under this Act.

(3) on such conditions as the Financial Commissioner may determine a licence for sale under the Excise Law for the time being in force in other parts of the whole of the India Except part B States may be deemed to be a licence granted in that behalf under this Act;

(4) nothing in this section applies to the sale of any foreign liquor lawfully procured by any person for his private use and sold by him or on his behalf or on behalf of his representatives in interest upon his quitting a station or after his decease."

"27. Grant of lease of manufacture etc.

(1) The State Government may lease to any man not below the age of twenty-five years on such conditions and for such period as it may deem fit, the right-

(i) of manufacturing or of supplying by wholesale, or

(ii) of selling by wholesale or by retail, or

(iii) of manufacturing or of supplying by wholesale, or of both and of selling by retail.

of any country liquor or intoxicating drug within any specified local area.

(2) The Collector shall grant to a lessee under Sub-section (1) licence on the terms of his lease; and, when there is no condition in the lease which prohibits sub-letting, may, on the application of the lessee, grant a licence to any sub-lessee approved by the collector."

A reading of the above would show that the arguments raised by the learned counsel for the petitioner are totally devoid of any merit. There is no dispute about the proposition that under the aforesaid provisions, the State has the power either to sell the liquor at its own level and it can grant leases for the sale of the liquor either by way of wholesale or by retail. But we have to see whether by these acts, any mischief, as Understood u/s 9A of the Act, has been committed by the respondent. At the cost of repetition, the operative portion of Section 9A of the Act is:

"for the supply of goods to, or for the execution of any works undertaken by, that Government."

In other words, there must be a subsisting contract which has been entered by the person whose candidature is sought to be disqualified and that contract must be for the supply of goods to the Government or for the execution of any works undertaken by that Government. In other words, if there is a direct contract between the individual and the Government for the supply of goods, such contractual party would be debarred and also if for the implementation of any obligation "work" undertaken by that Government there is a contribution towards execution by that person. Here in the present case there is no work undertaken by the Government in which the respondent is aiding or contributing. Faced with this difficulty, the learned counsel for the petitioner after placing reliance on the above sections of the Punjab Excise Act, submitted that sale of liquor is a work which can be undertaken by the Government and that since the Government could not Undertake that work, therefore, it had appointed its agents in the shape of licencees, who would Undertake that work, therefore, it had appointed its agents in the shape of licencees, who would Undertake the work and such Undertaking would be deemed to be for the execution of any works within the meaning of Section 9A of the Act. The submission raised by the learned counsel for the petitioner is not acceptable to its Court. I have to give the plain interpretation to the words of Section 9A of the Act. If the act on the part of the respondent does not fall within the meaning of ''supply of goods'' or ''for the execution of any work which has been undertaken by the Government'' there would be no disqualification, There is not an iota of evidence on the record that for the Year 1996-97 the Government had undertaken to sell the liquor at its own level in the State of Punjab and in order to achieve that object, the services of the respondent either in the shape of writing or otherwise were ever required by the State Government. The learned counsel for the petitioner had invited my attention to Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors. (1995) S C C 574 and submitted that since the State has the power to prohibit completely trade or business of liquor, it can create monopoly in itself for the trade or business and, therefore, by appointing the respondent as licencee, it was asking the respondent for the implementation of the work which has been undertaken by the Government. Several paras of this judgment have been read by the learned counsel for the petitioner in order to convince this Court and to bring the case of the respondent within the mischief of Section 9A of the Representation of the People Act, But I am of the considered opinion that by mere becoming a licencee of the State Government, the respondent is not aiding in execution of any work which has been undertaken by the Government. A reading of Section 9A of the act would show that firstly there must be an Undertaking by the State Government and for the implementation of that obligation, the State is contracting the , services of an individual. In the present case the State is not selling the liquor through the respondent. It has simply given the licence to the respondent to sell the liquor at his own end and for this act the respondent is to pay the licence fee to the State so that the State may generate its own resources. The position would be different if the respondent was charging a commission for the sale of the liquor which is to be supplied by the State. The entire object of Section 9A of the Act is to keep the purity on the part of a candidate who is desirous of contesting the election. Such candidate should not derive any benefit directly or indirectly from the State Exchequer. Learned counsel for the respondent has invited may attention to a citation reported as B. Lakshmikantha Rao Vs. D. Chinna Mallaiah and Others, wherein it was held as follows :-

" The two important requirements, apart from other requirements, u/s 9-A for disqualifying a person thereunder are, the subsisting contract must be for the supply of goods to the Government, or for the execution of any works undertaken by the Government."

"It is true that the object of the Parliament in enacting Section 9-A was to preserve the integrity of the Legislators and to prevent any possible conflict between public duty and private gain; but it must be remembered that a person has a right to contest the election; and Section 9-A restricts that right. Therefore, the Section has to be construed and interpreted in a reasonable manner having due regard to the plain meaning of the words used therein. The Language used in Section 9-A reflects the intention of the Parliament and there is no difficulty in Understanding the same. Even if it is permissible to take a broad view of the section, there cannot be any justification to extend the provision of things which are plainly excluded from its natural meaning. In dealing with the statutory provisions which disqualify 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. Therefore, a broad and unrestricted interpretation should not always be given to the language of Section 9-A ignoring the cardinal rules of interpretation,"

"The well-established principle of interpretation of statutes is that the provision of a statute must be construed according to its plain meaning, neither adding to it nor subtracting from it when the terms are clear and plain, it is the duty of the Court to give effect to it as it stands. It is only when the terms of the statute are ambiguous or vague, resort may be had to the statement of Objects and Reasons attached to the Bill for the purpose of arriving at the true intention of the Legislature. There is no ambiguity about the words used in Section 9-A, viz., "for the supply of goods to, or for the execution of any works Undertaken," and therefore there is no necessity to refer to the statement of Objects and Reasons attached to the Bill. Section 9-A does not cover a contract for the performance of any services undertaken by the Government."

"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, shows that the highest bidder had to deposit the monthly rental 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 can be recovered as arrears of land revenue. Similarly with regard to the toddy shope he had to tap the toddy from the trees allotted to him by 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 falls in arrears the same can be recovered as arrears of land revenue. There are other incidental conditions in the agreements like, place, etc.

Held that the contracts entered into by the returned candidate with the State Government to sell toddy and arrack did not come within the mischief of Section 9-A as they were neither for supply of goods to the Government nor for the execution of any works undertaken by the Government and consequently he did not suffer from any disqualification for being chosen as a Member of the Legislative Assembly."

The ratio of the above authority, though sought to be distinguished by the learned counsel for the petitioner, could not be successfully distinguished. Rather, the ratio of this authority is very close to the facts in hand and it was held by the Andhra Pradesh High Court that such licence did not come within the mischief of Section 9-A of the Act as under such contract, the returned candidate did not supply the goods to the Government nor he did any act for the execution of any works undertaken by the Government. It was held in these circumstances that the respondent did not suffer from any disqualification for being chosen as a Member of the Legislative Assembly.

The aforesaid authority of the Andhra Pradesh High Court was discussed by the Hon''ble Supreme Court in Dewan Joynal Abedin v. Abdul Wazed Alias Abdul Wazad Miah and others 1988 S C C 580. The Hon''ble Supreme court in this authority not only approved the decision of the Andhra Pradesh High Court, but also interpreted the word "works" as used in Section 9-A of the Representation of People Act by referring to Entry 35 of List II of the Seventh Schedule, and Entry No. 32 of List III of the said Schedule of the Constitution of India. In para No. 17 of the judgment it was held as follows :-

"17. Unless the contract in question is one which dearly falls u/s 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 Vs. D. Chinna Mallaiah and Others, , the question that arose for consideration was whether a person who was carrying on the 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 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 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 of the fact that he was an excise contractor."

The above would show that the Hon''ble Supreme Court was pleased to uphold the view expressed by the Andhra Pradesh High Court reported as B. Lakshmikantha Rao Vs. D. Chinna Mallaiah and Others, , the operative portions of which I have already referred to above. The Legislature has used to word ''works'' in Section 9-A of the Act and the Hon''ble Supreme Court in para No. 18 of the judgment reported as Dewan Joynal Abeedin v. Abdul Wazed (supra) has given the definite meaning to the word ''works'' by holding as follows :-

"18. In the present case the position of respondent 1 is more or less similar to the position of the returned candidate in the decision of the Andhra Pradesh High Court. Respondent 1 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. Respondent 1 in this case had not undertaken to carry on any such work. According to Shorter Oxford English Dictionary the expression ''works'' 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 buildings vested in or in the possession of the State" is used in the same sense. The running of boats across in land waterways is 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 u/s 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 1958 had been there in Section 9-A of the Act."

If the above interpretations of the Hon''ble Supreme Court as given in paras Nos. 17 and 18 of the aforesaid judgment are applied to the facts in and, this Court is of the considered opinion that the petitioner has no case absolutely. By no stretch of imagination it can be said that the respondent was doing any thing for the execution of any works undertaken by the State Government.

Faced with this difficulty, learned counsel for the petitioner had drawn my attention to Section 60 of the Punjab People Act, 1914, and submitted that under this Act, the State Government has the power to recover the excise revenues from a liquor licencee. This is a work undertaken by the Government with the payment of the revenue. The argument is devoid of any merit. This section is an enabling section which gives powers to the Government as to how the excise revenue can be recovered in case a licencee commits the default. The proposition which confronts this Court for determination is whether by granting a licence to a licencee to sell the liquor, the activities of such licencee can be termed as if he was performing the activities for the execution of any works undertaken by the Government. The licencee sells the liquor as its owner and not on behalf of the Government, though he pays the licence fee to the Government. In these types of a contracts, the State does not guarantee profit to the licencee and there is no warranty against incurring losses. It is a business for the licencees. Whether they make profits or incur losses, is no concern of the State Government. The nature of the contracts given to the respondent has been discussed by the Hon''ble Supreme court in Assistant Excise Commissioner and Others Vs. Issac Peter and Others, , and at page 157, the Hon''ble Judges of the Supreme Court have laid down as follows :-

"......We are, therefore, of the opinion that in case of contracts freely entered into with the State, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the State does not guarantee profit to the licencees in such contracts. There is no warranty against incurring losses. It is a business for the licencees. Whether they make profit or incurs loss is no concern of the State. In law, it is entitled to its money under the Contract. It is not as if the licencees are going to pay more to the State in case they make substantial profits. We reiterate that what we have said hereinabove is in the context of contracts entered into between the State and its citizens pursuant to public auction, floating of tenders or by negotiation. It is not necessary to say more than this for the purpose of these cases. What would be the position in the case of contracts entered into otherwise tan by public auction, floating of tenders or negotiation, we need not express any opinion herein."

The cumulative effect of the citations relied upon by this Court and quoted above, would show that the act of the respondent was not towards the execution of any works undertaken by the Government.

Resultantly, I decide issue No. 1 partly in favour of the petitioner to a limited extent that there was a subsisting contract between the Government and the respondent on the date of the filing of the nomination papers, on the date of the scrutiny and on the date of the election, but the contract was never entered into by the respondent 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. Issue No. 2 is decided in favour of the respondent and it is held that the petition does not disclose any cause of action and that Shri Harmohinder Singh respondent did not become disqualified by virtue of the provisions of Section 9-A of the Representation of People Act.

Issue No. 3.

In view of my findings of issues Nos. 1 and 2, issue No. 3 is decided against the petitioner and in favour of the respondent and I hold that the respondent was duly elected from Constituency No. 54, i.e., Raikot Assembly Constituency, to the Punjab Assembly, and the election of the respondent was not void as pleaded by the petitioner.

Issue No .4.

In view of my above discussion, this petition fails and is hereby dismissed with costs. The counsel''s fee is assessed at Rs. 5,000/-

The Registry is directed to send intimation of the decision accompanied by an authenticated copy of this judgment to the Election Commission of India and to the Speaker of the Punjab State Legislative Assembly as contemplated u/s 103 of the Representation of the People Act.