JUDGMENT
U.N. Sinha, J.
1. On the 27th of February, 1962, in an election held for the Bihar Legislative Assembly from Lalgani North Constituency, Shri Bateshwar Prasad was declared to be elected. Along with Shri Bateshwar Pd. four other persons had filed nomination papers who were the ultimate contestants for the election. Thereafter, Shri Laliteshwar Prasad Shahi one of the defeated candidates filed an election petition under Sections 80 and 81 of the Representation of the People Act, 1951 (Act 43 of 1951), challenging the election of the elected candidate. The objection taken was to the effect that the election of the candidate was void, as he was disqualified for being chosen as a member of the Legislative Assembly, in view of Section 7 (d) of the Act standing in his way. The substance of the petition was to the effect that the elected candidate had entered into contracts with the State Government, which were then subsisting. It was mentioned in the election petition that Shri Bateshwar Prasad and his son, Bhupendra Nath Prasad. were the proprietors and owners of the Patna Flooring Company and they were carrying on the business of mosaic flooring and of plumbing and sanitary works, in the name and style of Messrs. Patna Flooring Company.
It was alleged that Shri Bateshwar Prasad himself and through his firm named above had contracts with the Government of Bihar through the Public Works Department (Construction Division) for doing mosaic works in the Rajendra Surgi cal Block of the Patna General Hospital and the contracts were subsisting at the time of his nomination and election. It was mentioned that in
connection with the above mentioned contracts, Shri Bateshwar Prasad had filed Money Suit No. 53 of 1959 in the Court of the Subordinate Judge, 1st Court, Patna against the State of Bihar, Government of Bihar, etc:, for realisation of his claim amounting to Rs. 18500/-, which suit was pending adjudication at the relevant time.
I may state here that the other allegations made in the election petition are not relevant for the appeals in this Court. The prayer of Shri Laliteshwar Prasad Shahi in the election petition was that the election of Shri Bateshwar Prasad may be declared to be void and a declaration may be given that Shri Sahi had been duly elected. The substance of the case of the elected candidate, mentioned in his written statement, was that he had never entered into any contract with the Government of Bihar through the Public Works Department, for doing mosaic work in the Rajendra Surgical Block. No such contract was subsisting at the time that he had filed his nomination paper and at the time of his election. It was alleged that the contract with respect to the Rajendra Surgical Block had been entered into by one G.P. Saxena with the State of Bihar in 1951. The Government of Bihar had withheld an amount of Rs 13,579-0-4 pies from the final bill of Shri Saxena, on account of the claim of the elected candidate
Upon the allegations of the parties, the following issues were framed by the Tribunal:-
1. Is the petition fit to be rejected for improper verification?
2. Is respondent No. 1 disqualified from being elected a member of the Bihar Legislative Assembly under Section 7 (d) of the Representation of the People Act, 1951, because of the alleged contract with the State of Bihar on the relevant date?
3. Were the nomination papers of respondent Nos. 2 to 4 improperly accepted on the ground of their alleged disqualification under Section 7 (d) of the Representation of the People Act, 1951 and under Article 191 (1) (a) of the Constitution or India; if so, was the election materially affected by such improper or illegal acceptance?
3 (a) Whether the petitioner is estopped from challenging the election of respondent No. 1 to the Bihar Legislative Assembly?
4. Is the petitioner entitled to be declared elected?
The finding of the Tribunal under issue No 3 (a) may be stated first as nothing more is necessary to state except that it was answered in favour of the petitioner before the Tribunal. The contraversial points for determination, which have been argued in this Court, arose under issue No. 2. Some conclusions were in favour of Shri Bateshwar Prasad, whereas the question regarding the mosaic work in the Rajendra Surgical Block of the Patna Medical College Hospital was answered against the elected candidate Dealing with the points in paragraphs 70 to 95 of the judgment the Tribunal has come to the conclusion that the two contracts between the elected candidates and the Public Works Department were subsisting on the date that he had filed the nomination paper. Thus, the election of Shri Bateshwar Prasad has been declared to be
void. Issue No. 4 has been answered against Shri Laliteshwar Prasad Shahi. Election Appeal No. 11 of 1963 has been filed by the elected candidate, Shri Bateshwar Prasad. Election Appeal No. 12 of 1963 has been filed by Shri Laliteshwar Prasad Shahi.
2. I will take lip Election Appeal No. 11 of 1963 first, and in considering this appeal, describe Shri Bateshwar Prasad as the appellant and Shri Laliteshwar Prasad Shahi as the respondent, although there are other respondents, formally on record.
3. Learned counsel for the appellant has formulated his contentions thus:
(a) The appellant was not a contractor under the State Government for the mosaic work to be done in the Rajendra Surgical Block, but that at all relevant times, he was a sub-contractor under one G.P. Saxena, who was a contractor under the State Government for the purpose.
(b) Assuming that there was a contract within the meaning of Section 7 (d) of the Representation of the People Act, 1951 (Act 43 of 1951), sometime, there was no subsisting contract when the appellant had filed his nomination paper in 1962, and thereafter.
(c) Assuming again that there was a contract between the appellant and the State Government sometime, the contract alleged was void, in view of Article 299 (1) of the Constitution of India, so that the Tribunal could not have held that the appellant was disqualified to be chosen as a candidate.
4. Learned Counsel for the respondent has
controverted all these contentions and has submitted that the appellant had entered into two sets
of contracts with the State Government through
the Public Works Department for doing mosaic
work in the Rajendra Surgical Block in the year
1955, and the appellant was, therefore, disqualified
for being chosen as a member of the State Legislative Assembly. It is also argued that the question of a contract subsisting at the relevant time
ought not to be permitted to be raised on behalf of the appellant as it was nowhere contended before the Tribunal that if the appellant was a contractor under the State Government, the Contract or contracts were not subsisting at the material time. It is then argued that the evidence on record proves that there was a contract between the appellant and the State Government, within the meaning of Section 7 (d) of Act 43 of 1951, and no reference, need be made to the Constitution of India to find out whether the contract of contracts were valid or void under Article 299.
5. Before considering the facts of the case, it will be convenient to mention here the relevant provisions of law to which our attention has been drawn. Section 7 (d) of Act 43 of 1951, as it stood before the amendment by Act 58 of 1958 read as follows:-
“7. A person shall be disqualified for being chosen as, and for being a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State –
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(d) if, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account, he has any share or interest in a contract for the supply of goods to, or for the execution of any works or the performance of any services undertaken by, the appropriate Government;”
Section 7 (d) as it now stands, reads thus:-
“7. A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State –
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(d) if there subsists a contract entered into in the course of his trade or business by him with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government;”
Article 299 (1) of the Constitution reads thus:-
“All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise.”
Under Article 299 (1) of the Constitution, it is admitted by the parties, that a valid contract could have been made on behalf of the State only by an instrument in writing by the Superintending Engineer, if the value of the contract was Rs. 50,000 or above, and by the Executive Engineer, if the value was less than Rs. 50,000/-.
6. The main point for consideration, so far as the appellant is concerned, is whether he became a contractor under the State Government in 1955, as a result of offer and acceptance incorporated in two letters, Exhibit 1 (G) dated the 17th of April, 1955, and Exhibit 1 (C), dated the 20th of April, 1955, and by a letter [Exhibit 1 (k) ] dated the 23rd of December, 1955, and the work done according to the instructions contained in this letter But before I deal with these and other letters on record, it will be necessary to refer to the undertaking of G.P. Saxena, as a contractor under the State Government
Exhibit D is said to refer to a contract entered into by Saxena with the Bihar Public Works Department. Items Nos. 39 and 40 of Exhibit D are said to represent the mosaic work to be done in the Rajendra Surgical Block at the rates mentioned therein. Although the extent of work mentioned in items Nos. 39 and 40 appears to be insignificant, as compared to the work done, by whosoever it may have been done ultimately, it appears from the evidence of Janardan Sinha (P W 25) that any contractor had to undertake any excess work if called upon to do so. P. W. 25 states in this context:-
“The entire work was done by two persons. Halt was done by Mr. G.P. Saxena and the other half by Seth Thawar Dass. M/s. Patna Flooring Company did some work under G.P. Saxena. The contractor would undertake to do any construction in excess of the previous estimated work if called upon to do so. It is not possible to assign any part of a work to a third party without rescinding
the contract. There is no need of contract executed by Government of Bihar in regard to the work of Rajendra Surgical Block except with Shri G.P. Saxena and Seth Thawar Dass. Their contracts were never rescinded. (Objected by the petitioner).”
7-18. (His Lordship considered the evidence on record and continued as under:-) The final bill mentioned by this witness is Exhibit F dated the. 26th November, 1956 and it will show that what the witness has stated is correct. The evidence oral and documentary considered above, shows in my opinion, that there was really no contract between the appellant and the State Government through the Public Works Department, for any mosaic work in the Rajendra Surgical Block. It will appear presently that in spite of particular rates quoted by the appellant in Exhibit 1 (G), no question ever arose of paying him directly at those rates eliminating Saxena whose rates for the moasic work were slightly higher, as mentioned in Items 39 and 40 of Exhibit D. Then comes a letter from the Sub-divisional Officer to the appellant dated the 23rd of December, 1955, Exhibit 1 (k). This is also a sheet anchor of the contentions raised on behalf of the respondent. Exhibit 1 (k) runs as follows:-
“As per verbal order of the Executive Engineer, construction Division, Patna, today the 23rd December, 1955, you are hereby requested to do the Mosaic work (sic) (‘Lying and Polishing) in the two bath rooms and Laboratory of the Lecture Theatre of the Rajendra Surgical Block. The work will be done as per instruction.”
19. Upon this document and another letter from the Sub-Divisional Officer to the appellant dated the 4th January, 1956, Exhibit 1 (L), it is contended that a fresh contract came into existence between the appellant and the Public Works Department for doing some mosaic work in two rooms and a laboratory of the Rajendra Surgical Block No doubt the appellant executed the work contemplated by Exhibit 1 (k) as is indicated by Exhibit 10, described as the measurement of the work in the bathrooms of the Lecture Theatre, but it will appear presently, that in spite of Exhibit 1 (k) and the execution of the work contemplated by it, the original state of things continued and the appellant remained a sub-contractor under Saxena without becoming a direct contractor under the Public Works Department The tribunal has mentioned that the bill (Exhibit 10) was sent by the appellant to the Public Works Department. The respondent (R W 32) has, on the other hand, deposed that the original of Exhibit 10 was sent to Saxena and a copy was sent to the Sub-Divisional Officer for information. According to him he had sent this bill to Saxena under the direction of the Executive Engineer. Although nothing much turns upon this aspect of the matter in view of the later correspondence, our attention has been drawn to the following letters in connection with Exhibit 10. The Executive Engineer had sent a memorandum numbered 1993 dated the 21st March, 1956, to Saxena as is indicated In Exhibit A-4, dated 28th March, 1956, a letter sent by Saxena to the Executive Engineer Saxena had wanted that the appellant should send the bill to, him for checking and for arranging for payment. A copy of this letter was forwarded to the appellant for immediate action by the Executive Engineer on the 31st March, 1956. On receipt of the memorandum of the Executive Engineer the appellant sent Exhibit 1 (h) to the Executive Engineer on the 4th April, 1956. Therefore, it is clear that whether Exhibit 10 had been sent in original to the executive Engineer or to Saxena, the understanding was that Saxena was to check the bill for payment There was no question of payment from, the Public Works Department Then, followed Exhibit F, the final bill of Saxena sent to the Public Works Department It is stated the 26th of November, 1956. This bill included all the mosaic flooring and dado work done in the Rajendra Surgical Block. The claim made for payment was at higher rates settled with Saxena under Exhibit D. Exhibit F also shows payment to Saxena of Rs. 55,633.69 nP, What were kept back in deposit were two items, namely (1) income-tax amounting to Rs. 45,741.25 nP. and (2) dues of Patna Flooring Company amounting to Rs. 13,897. P. W. 25 has stated, in this context, that –
“According to Ext. G and further talk of settlement Rs. 13897/- was kept in deposit of the account of G.P. Saxena and that is entered in final bill Ext. F”.
P. W. 33 has stated in this context:-
“Ext F is the 27th and final bill prepared with regard to construction work of Rajendra Surgical Block, in favour of G.P. Saxena. It is mentioned in this bill that with regard to work done by Patna Flooring Co., in the Rajendra Surgical Block. G.P. Saxena has been paid entirely, Rs. 13897/- has been deducted and kept in deposit.”
20. This witness has further stated probably, no final bill or bills at all were even prepared in favour of Patna Flooring Company with regard to any portion of work done for the Rajendra Surgical Block in his time. It is, therefore, clear to me that in spite of Exhibit 1 (k) and the work done by the appellant in pursuance thereof, the work was really considered to be the work of a sub-contractor under Saxena. This is clear from a series of letters from the Executive Engineer that followed. The first one is Exhibit A-5, dated the 21st of August, 1957. Saxena was asked to clear off the appellant’s dues for the mosaic work done in the Rajendra Surgical Block. Saxena was asked to obtain clearance certificate from the appellant and others, who had worked in such matters. This was followed by Exhibit A-12 dated the 7th of December, 1957. Reference was made to the dues of the appellant amounting to Rs. 13,597/- and Saxena was asked again to obtain a clearance certificate. It was stated that failing this, this amount would be recovered from Saxena’s final bill, which was then under scrutiny. Then came a letter from the Executive Engineer to the appellant dated the 8th of March 1958, (Exhibit A-7) it reads thus:
“Please refer to Shri G.P. Saxena’s letter No. 441 dated 13-12-57 to my address and copy to you also and submit your bill to Shri G.P. Saxena for settlement of your dues as required by him.”
21. The expression “settlement of your dues as required by him” quite dearly shows that all
the three parties considered Saxena to be responsible for the payment to the appellant. Then came Exhibit A-8 D/- the 10th March, 1958 to Saxena. The Executive Engineer enclosed a letter from the appellant to him and asked Saxena to settle the mater at once and report compliance. The appellant was informed that he should contact Saxena immediately for settlement of his dues. Next we have on the record Exhibit 1 (F), dated the 16th May, 1958. This was a letter from the Executive Engineer to the Superintending Engineer. It referred to the dues of the appellant amounting to Rs. 13,597. It was suggested that Saxena might be advised to settle payments with the appellant and to obtain a clearance certificate from him. Our attention has been drawn to a note made is Exhibit 1 (F) to the following effect:-
“Was the sanction of S. E. S. B. C. taken to this arrangement, if so, copies of the correspondence may please be furnished.”
But learned counsel for the parties have not been able to show us any further materials as to what happened to this querry. Apparently, no payment had been made by Saxena to the appellant, and Exhibit A-9 dated the 27th May, 1958, followed from the Superintending Engineer to Saxena. It stated thus:-
“With reference to the correspondence resting with this office No. 2716 dated the 31-3-58. I have to request you to please settle the matter amicably with Messrs. Patna Flooring Co., within a month as otherwise the amount will have to be deducted from your final bill.”
22. A copy of this letter was sent to the appellant for information and necessary action. It appears that on the pretext of paying Rs. 13,597 to the appellant, Saxena got refund of his security deposit kept back on account of income-tax purposes. But after taking this refund, the appellant was still not paid. A letter from Executive Engineer to Saxena, dated the 10th September, 1958, (Exhibit A-(11)) is interesting reading and it runs thus:-
“The contractor’s representative who saw me in the office at the time of refund of this security deposit kept back on account of Income-taxes had promised that he would settle up the accounts with Messrs. Patna Flooring Works, pay it their dues immediately on refund of aforesaid amount. Although the refund of the aforesaid amount has already been given to you it appears that the dues of M/s. Patna Flooring Works have not yet been cleared by you. The position has been fully explained to Superintending Engineer and you are once more requested to clear of the dues of the firm at once so that the refund of the amount kept in deposit may be given to you.”
23. Apparently, no payment was made to the appellant, as a result of which he instituted Money Suit No. 53 of 1959 against G.P. Saxena, State of Bihar and others. Upon the materials on record, it is clear to me that the appellant had never become a direct contractor under the State Government through the Public Works Department. Learned counsel for the respondent has relied upon the allegations made by the appellant in
the plaint filed by him in Money Suit No. 53 of 1959 on the 31st of March, 1959, and the notice under Section 80 of the Code of Civil Procedure that preceded the suit, for his contention that according to the appellant himself, he had entered into direct contract with the Public Works Department. But in my opinion, the allegations in the plaint must be taken as allegations meant for the purpose of that particular suit and the true relationship between the appellant and the Public Works Department must be determined in this case on the evidence adduced here. Some explanation was attempted to be given by the appellant (R. W 32) where he has stated that all averments in the plaint in question about the direct contract with the Public Works Department were not made on his instructions. The explanation may be true or it may be false, but the allegations made by the appellant in the money suit cannot be the last word on the questions that have arisen for determination in this case. It may be incidentally mentioned, that the written statement filed by the State of Bihar, the Secretary to the Public Works Department and the Executive Engineer (Defendants Nos. 1, 2 and 3 of the money suit) states thus:-
“4. Referring to the claim of the plaintiff it is submitted that these defendants were prepared to pay Rs. 13597/0/4 to the plaintiff but Shri G.P. Saxena, Defendant No. 4, who was original contractor, claimed that the plaintiff was his agent and asserted that the payment of the bill should not be made to the plaintiff and on these grounds the defendants withheld the payment of the said amount till it was finally decided whether the plaintiff or defendant No 4 was the rightful claimant. It is submitted that these defendants are quite willing to pay the sum of Rs. 13597/0/4 to the plaintiff even now if it is held by this Court that the plaintiff is the rightful claimant and the said amount is payable to him. These defendants have acted quite bona fide to protect themselves against any claim which may be made against them by defendant No. 4.”
24. In my opinion, the pleadings of the parties in the money suit have not much bearing in the present enquiry. To my mind, it was unthinkable that the authorities of the Public Works Department were entering into a direct contract with the appellant for such extensive work without entering into a proper contract as envisaged by Article 299 (1) of the Constitution. P. W. 25 has stated that to his knowledge no contract or execution of work over the value of Rs. 200/- in the Public Works Department is entered into orally. This witness must be a very competent witness, because he was examined to prove that he did pairvi in the noney suit for the state of Bihar. It may also be mentioned that if the entire mosaic work done in the Rajendra Surgical Block was ultimately covered by Exhibit D the appellant could not have been engaged as an independent contractor, eliminating Saxena miles the contract with the father had been rescinded. The Tribunal has found that the original contract with Saxena had not been rescinded at any stage. According to the Tribunal however it was not necessary to rescind a contract with Saxena and a fresh contract could be entered into by the Public Works
Department with the appellant under Clause 3 (c) ct Exhibit D. The relevant portion of that clause reads thus:-
“Clause 3:- Action when whole security deposit is forfeited:- In any case in which under any clauses of this contract the contractor shall have rendered himself liable to pay compensation amounting to the whole of his security deposit in the hands of Government (which whether paid in one sum or deducted by instalments) the Executive Engineer on behalf of the Governor of Bihar shall have power to adopt any of the following courses, us he may deem best suited to the interests of Government.”
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(c) To measure up the work of the contractor, and to take such part of the work of the contract as shall be unexecuted out of his hands, and to give it to another contractor to complete, in which case any expenses which may be incurred in excess of the sum which would have been paid to the original contractor if the whole work has been executed by him (of the amount of which excess the certificate in writing of the Executive Engineer shall be final and conclusive) shall be borne and paid by the original contractor and may be deducted from any money due to him by Government under the contract or otherwise, or from his security deposit or the proceeds of sale thereof, or a sufficient part thereof.
In the event of any of the above courses being adopted by the Executive Engineer, the contractor shall have no claim to compensation for any loss sustained by him by reason of his having purchased or procured any materials, of entered into any engagements, or made any advances on the performance of the contract. And in case the contract shall be rescinded under the provision aforesaid the contractor shall not be entitled to recover or be paid any sum for any work theretofore actually performed under this contract, unless and until the Executive Engineer shall have certified in writing the performance of such work and the value payable in respect thereof, and he shall only be entitled to be paid the value so certified.
25. It may very well be that Clause 3 (c) empowered the Executive Engineer to take certain steps in the event of the contractor failing to fulfil the terms of his contract but, the evidence on record does not justify a conclusion that in the year 1955 any part of the work covered by Exhibit D had been taken out of the hands of Saxena and had been given to the appellant as an independent contractor. Clause (3) contemplates an event when the contractor had rendered himself liable to pay the compensation amounting to the whole of his security deposit in the hands of the Government. In the instant case, the security deposit of Saxena never became liable to forfeiture, and as a matter of fact, Saxena had withdrawn his security deposit as stated above. I am not in a position to affirm the conclusion of the Tribunal based or Clause 3 (c) of Exhibit D.
26. On the second point raised on behalf of the appellant to the effect that there was no subsisting contract in 1962 the argument is based on Exhibit G. It is argued that even if there was
a contract between the appellant and the Public Works Department, representing the State Government, proved by Exhibit 1 (G) and 1 (C) there was a novation of this contract on the 21st July, 1955, when Exhibit G came into existence. It is further contended that for the work done in the bathroom, pursuant to Exhibit 1 (k) where was also an agreement amongst all the parties that the liability for the payment of this work was of G.P. Saxena. According to learned counsel, the final bill of G.P. Saxena (Exhibit F) indicates that all the three parties had agreed that the liability for payment to the appellant was not of the Public Works Department, but of Saxena. Upon the conclusions arrived at above on the main point, this question is of mere academic interest and there may be substance in the argument of learned counsel for the respondent, that this question ought not to be allowed to be raised at this stage. It appears that the appellant had based his case be fore the Tribunal upon a contention that there was no contract between the appellant and the State Government through the Public Works Department, and Exhibit G was relied upon in proof of that contention The question of novation of any contract between the appellant and the Public Works Department, representing the State Government had not been urged before the Tribunal. In this connection, learned counsel for the appellant has drawn our attention to ground No. 59 of the memorandum of appeal. But, it is difficult to hold that ground No. 59 was inserted in support of a contention that even it the appellant was a contractor under the Public Works Department, there was a novation of contract by Exhibit G. In the same ground reference was made to Exhibit O, a certificate given by Saxena to the appellant, stating that the appellant had completed the mosaic flooring and dado work of 40,800 square feet in the Rajendra Surgical Block on contract under Saxena. To my mind, ground No. 59 was taken in support of the contention that the appellant had always been sub-contractor under G.P. Saxena.
27. The last point raised on behalf of the appellant is also of substance. It the Public Works Department had entered into a contract with the appellant in 1955 for mosaic work to be done by the appellant, that contract was void, so far as the State Government was concerned, in view of Article 299 (1) of the Constitution of India. There is no dispute that no contract in writing came into existence so far as the appellant was concerned. The alleged contract must be held to be void in view of the decisions which Have now come into existence since the case of Chaturbhuj Vithaldas v. Moreshwar Parashram, reported in AIR 1954 SC 236, was decided by the Supreme Court In Bhikraj Jaipuria v Union of India, AIR 1962 SC 113 and in State of West Bengal v B.K. Mondal and Sons, AIR 1962 SC 779 it has been held by the Supreme Court that a contract which is not in accordance with the requirements of Section 175 (3) of the Government of India Act, 1935 [subsequently the same as Article 299 (1) of the Constitution of India] is void. Reference may also be made to a Full Bench decision of this Court, in the case of Hindustan Construction Co., Muzaffarpur v. State of Bihar,
reported in AIR 1962 Pat. 330 (FB). Then came the decision of the Supreme Court, in the case of New Marine Coal Co., Bengal (Private) Ltd. v. Union of India, reported in AIR 1964 SC 152, again interpreting Section 175 (3) of the Government of India Act, 1935. Learned counsel for the respondent has distinguished the decisions, arising under the Contract . Act, on the ground that a contract which contravenes Article 299 (1) of the Constitution may be void as a contract, but it will still be a subsisting contract within the meaning of Section 7 (d) of Act 43 of 1951. In this context, reliance is placed on the case of AIR 1954 SC 236 and on the case of Bhagwan Singh v. Rameshwar Prasad Shastri, AIR 1959 SC 876 which are cases on election. Learned counsel has urged that in Chaturbhuj Vithaldas’s case, AIR 1954 SC 236 it was held by Bose, J., that a contract which contravened the relevant provisions of the Government of India Act was merely enforceable, but it was still a subsisting contract within the meaning of Section 7 (d) of Act 43 of 1951, as it then stood. The peculiar facts of Chaturbhuj Vithaldas’s case, AIR 1954 SC 236 have been brought into focus by their Lordships of the Supreme Court in Bhikraj Jaipuria’s case, AIR 1962 SC 113, where it has been stated thus:-
“The facts proved in that case clearly establish that even though the contract was not in the form prescribed, the Government had accepted performance of the Contract by the firm of which Jasani was a partner, and that in fact there subsisted a relation between the Government and the firm under which* the goods were being supplied and accepted by the Government. The agreement between the parties could not in the case of dispute have been enforced at law, but it was still being carried out according to its terms; and the Court held that for the purpose of the Representation of the People Act, the existence of such an agreement which was being carried out, in which Jasani was interested disqualified him. It was clearly so stated when Bose, J., observed:
“Now Section 7 (d) of the representation of the People Act does not require that the contracts at which it strikes should be enforceable against the Government, all it requires is that the contracts should be for the supply of goods to the Government. The contracts in question are just that and so are hit by the section.”
28. In the instant case, the State Government had not accepted the performance of the contract by the appellant and, therefore, the ratio decidendi of Chaturbhuj Vithaldas’s case, AIR 1954 SC 236 will not apply. It appears to me, further, that the amendment of Section 7 (d) makes all the difference now to the question in issue. Section 7 (d), as it stands now, envisages, first at all, a subsisting contract, that is to say, it must be established that there exists, at the relevant time, in a substantial form, a contract in order to bring the disqualification for election to the Legislative Assembly. Secondly, the sub-clause envisages that there is a contract entered into by a person with the appropriate Government for any of the purposes mentioned therein. To my mind, it must be proved that there exists, at the relevant time, a valid contract entered into by the candidate with the appropriate Government The expression “a
contract entered into in the course of his trade or business by him with the appropriate Government” was not present in the old Sub-clause (d) of Section 7. What was mentioned in the original sub-clause was, “he has any share or interest in a contract”.
It may very well be that upon the phraseology of Section 7 (d) as it stood then, their Lordships of the Supreme Court held that even an unenforceable contract would bring in the disqualification to be chosen as a member. But the sub-clause has undergone a metamorphosis by the amendment. Now, it must be established that there is a subsisting contract between the candidate and the appropriate Government. In my view, the interpretation which should be put on Section 7 (d) as it now stands is, that, the candidate shall be disqualified for being chosen as a member, only if there still exists, in substance, at the relevant time, a valid and binding contract between him and the appropriate Government. It is difficult to accept the contention of the learned counsel for the respondent that a transaction may be void under the Contract Act, but its factual existence may still be disqualification under present Section 7 (d). Learned counsel for the respondent has gone so far as to urge that the intention of the legislature must have been that no person, who had purported to enter into a contract with the State Government, should be eligible for being a member of the Legislative Assembly (as it is in this case), even if it transpires later on that the contract was void in law. I am, however, not inclined to accept this contention on any supposed intention of the legislature. Section 7 (d) imports a total disqualification of a person for being chosen as a member of any of the Houses mentioned therein and the provision of law must be strictly interpreted for the purposes of such disqualification. It is not necessary to go so far as to hold that art interpretation in favour of the candidate should be given, if possible. But nevertheless, when a disqualification is alleged, the provision of law must be scrutinised and interpreted according to the intention of the legislature as expressed in the statute. I must, therefore, hold that the appellant had not incurred a disqualification under Section 7 (d) of Act 43 of 1951, for which his election has been declared to be void. The judgment and order of the Election Tribunal to this extent must be held to be wrong and it should be set aside.
29. If Election Appeal No. 11 of 1963 succeeds to the effect that the election of Shri Bateshwar Prasad is affirmed, then Election Appeal No. 12 of 1963 is bound to fail. Even on merits, it is clear that the approach of the Tribunal in determining issue No. 4 has been a correct one. In view of the case of Keshav Lakshman Borkar v. Dr. Deorao Lakshman Anande, reported in AIR 1960 SC 131, the contentions raised in this appeal must be rejected. The ingredients necessary for the petitioner to bring in aid Section 101 (a) of the Representation of the People Act, 1951, have not been proved and no relief can be given to him in any event.
30. In the result, Election Appeal No. 11 of 1963 is allowed with costs. A consolidated cost is assessed at Rs. 250/- Election Appeal No. 12 of 1963 is dismissed but under the circumstances, without costs.
R. J. Bahadur, J.
31. I agree.