Loknath Padhan V. Birendra Kumar Sahu
[1974] INSC 11 (16 January 1974)
BHAGWATI, P.N.
BHAGWATI, P.N.
GOSWAMI, P.K.
CITATION: 1974 AIR 505 1974 SCR (3) 114 1974
SCC (1) 526
ACT:
Representation of the People Act (43 of 1951)
s.
116A--Election Petition challenging
respondent's election to State Legislative Assembly--Dismissed--Dissolution of
Assembly pending appeal to this Court--Effect on appeal.
HEADNOTE:
The appellant filed an election petition
challenging the election of the respondent to the State legislative Assembly
alleging that there was a substising contract, entered into by the respondent
in the course of his trade and business, with the State Government, for the
execution of works undertaken by the Government, and that therefore he was disqualified
under s. 9A of the Representation of the People Act, 1951. The High Court
dismissed the petition holding that the contracts were not undertaken by the
respondent in his individual capacity in the course of his trade and business
but were on behalf of the Gram Panchayat of which he was the Naib Sarpanch, and
also that the contracts bad been. fully carried out by the respondent long
before the date of his nomination and that therefore, the Explanation to s. 9A
was applicable and took his case out of the section. While the appeal was
pending in this Court the State Legislative Assembly was dissolved under Art.
174(2)(6) of the Constitution, The respondent
raised the preliminary objection at the hearing of the appeal that in view of
the dissolution of the assembly it was academic to decide whether or not the
respondent was disqualified under the section.
HELD : The law relating to abatement of
election petitions is exhaustively dealt with in Chap. VI of Part IV of the Act
and since there is nothing in the Act 'which provides for abatement of election
petitions when the legislature is dissolved the dissolution does not result in
the abatement of an election petition. But the question in the present case is
not whether the appeal has abated on the dissolution of the State Assembly, but
whether in view of the dissolution of the State Assembly, it has become
academic to decide the appeal. In the instant case, even if it is found that
the respondent was disqualified under s. 9A it would have no.' practical consequence,
because invalidation of his election after the dissolution of the State
Assembly, unlike the case of invalidation for corrupt practice, would have no
effect whatsoever. Therefore, the State Legislative assembly having been
dissolved during the Pendency of the appeal it is now wholly academic to
consider whether the respondent was disqualified under s. 9A at the date of his
nomination and since that is the only ground on which the election of the
respondent is challanged it would be futile to hear the appeal on merits.
[117D-E; 120D] Shedhan Singh v. Mahan Lal [1959] 3 S.C.R, 417, followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 644 of 1972 From the judgment and order dated the 1st February 1972 of the
Orissa High Court in Election Petition No. 3 of 1971.
Gobind Das, and P. H. Parekh for the
appellant.
Narayan Nettar, V.J. Francis and B. Kanta
Rao, for the respondent.
The Judgment of the Court was delivered by
BHAGWATI J.-This appeal is preferred under S. 116A of the Representation of the
People Act, 1951 (hereinafter referred to as the Act) against the judgment of
the Orissa High Court dismissing an election petition filed by the appellant
challenging the election of the respondent to the Orissa Legislative Assembly
from Melchhamunda constituency in Sambhalpur district of the State of Orissa.
115 The facts giving rise to the appeal may
be briefly stated as follows: There were general elections to the Orissa
Legislative Assembly sometimes in the beginning of March 1971. The last date
for filing nomination papers was fixed on 7th February, 1971 and on or before
that date the appellant and the respondent both filed their respective
nomination papers for the seat from Melchhamunda constituency. On 9th February,
1971, which was the date fixed for scrutiny of the nomination papers, the
appellant raised an objection against the nomination of the, respondent on the
ground that he was disqualified under s. 9A of the Act. Section 9A provides
inter alia that 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 execution of any works undertaken by
that Government. There is an explanation to this section which says that 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. The allegation of the appellant
was that the respondent had entered into five contracts with the Government of
Orissa for the execution of works undertaken by that Government and these
contracts were still subsisting and the respondent was, therefore, disqualified
from contesting the election under s. 9A. This objection raised on behalf of
the appellant was overruled by the Returning Officer and the nomination of the
respondent was accepted. The polling thereafter took place on 5th March, 1971
and the respondent was declared elected on 11th March, 1971. The appellant
thereupon filed an election petition in the High Court of Orissa calling in
question the election of the respondent on the ground that he was disqualified
from being elected as a member by reason of s. 9A. The case of the appellant,
as laid down in the election petition, was that, at the date of nomination five
contracts were subsisting between the respondent and the Government of Orissa
in respect of the following works entrusted through the Gaisilet Panchayat
Samiti : (1) construction of the Mahila Samiti building at Borumunda, (2)
construction of the community recreation centre at Borumunda,(3)construction of
the village level lady worker's quarter at Borumunda, (4) construction of a
package village level worker's quarter at Gaisilet and (5) construction of the
Borumunda canal, and on account of the subsistance of these five contracts the
disqualification under s. 9A was attracted. Though the appellant relied on
subsistance of these five contracts in the election petition, he conceded at
the time of the arguments that contracts (4) and (5) may not be taken into
account and rested his case solely on the ground that contracts (1) to (3) were
subsisting between the respondent and the Government of Orissa. The respondent
denied that he had entered into any of these contracts with the Government of
Orissa in the course of his trade or business or that any such contract was
subsisting between him and the Government of Orissa at the date of nomination.
The respondent alleged that the work-. undertaken by him under contracts (1) to
(3) were part of the Second Five Year Plan and they were to be carried out by
the Grain Panchayat on the basis of 50 % subsidy from the Government and 50% contribution
by the people in terms of money or labour and 116 it was as leader of the
people and Naib Sarpanch that he had undertaken these works on behalf of the
Gram Panchayat and not in his individual capacity in course of his trade or
business. The contention of the respondent, therefore, was that S. 9A had no
application in his case. It was also urged by the respondent that in any event
these contracts had been fully performed by him before the date of nomina- tion
and his case was, therefore, covered by the Explanation to S. 9A. The
respondent also contended in the alternative that even if the stand taken by
the Block Development Officer on behalf of the Gaisilet Panchayat Samiti was
correct, namely, that the respondent had failed to carry out his obligations
under these contracts and the Government of the Gaisilet Panchayat Samiti had,
therefore, become entitled to recover the amount advanced to the respondent and
for that purpose issued the requisitions for certificate of recovery on 8th
January, 1967, the case of the respondent was outside s. 9A because in that
event the contracts were discharged by breach prior to 8th January, 1967 and
were no longer subsisting at the date of nomination. The High Court trying the
election petition took the view that the contracts in question were not
undertaken by the respondent in his individual capacity in course of his trade
or business, but they were undertaken on behalf of the Gram Panchayat in terms
of the schemes envisaged in the Second Five Year Plan as the respondent was the
leader of the people and Naib Sarpanch of the Gram Panchayat, and the dis-qualification
under s. 9A was, therefore, not attracted in the case of the respondent. The
High Court also held, relying on the evidence .of two witnesses, that the
contracts had been fully carried out by the respondent long before the date of
nomination and the Explanation was, therefore, applicable and that took the
case of the respondent out of the inhibition of S. 9A. The view taken by the
High Court thus was that the respondent was not disqualified from contesting
the election under s. 9A and on this view the High Court dismissed the election
petition.
Hence the present appeal under s. 116A of the
Act.
Whilst the appeal was pending in this Court,
the Orissa Legislative Assembly was dissolved by the Governor on 3rd March,
1973 under Art. 174(2)(b) of the Constitution. The respondent, therefore,
raised a preliminary objection at the hearing of the appeal before us that in
view of the dissolution of the Orissa Legislative Assembly, it was aca- demic
to decide whether or not the respondent was disqualified from being a candidate
under s. 9A and we should accordingly decline to hear the appeal on merits.
The argument of the respondent was that
unless there is a living issue between the parties the Court would not proceed
to decide it : it would not occupy its time by deciding what is purely an
academic question which has no sequitur so far as the position of the parties
is concerned. Here, contended the respondent, even if the appellant was able to
satisfy the Court that on the date of the nomination, the respondent was
disqualified under s. 9A, it would be a futile exercise, because the Orissa
Legislative Assembly being dissolved, the setting aside of the election of the
respondent would have no meaning or consequence and hence the Court should
refuse to embark on a discussion of the merits of the question arising in the
appeal. We think there is great force in thus preliminary contention 117 urged
on behalf of the respondent. It is a well settled practice recognised and
followed in India as well as England that a Court should not undertake to
decide an issue, unless it is a living issue between the parties. If an issue
is purely academic in that its decision one way or the other would have no
impact on the position of the parties, it would be waste of public time and
indeed not proper exercise of authority for the Court to engage itself in
deciding it.
Speaking of the House of Lords, Viscount
Simon, L.C. said in the course of his speech in Sun Life Assurance Co. of
Canada v. Jervis (1) I do not think that it would be a proper exercise of the
authority which this House possesses to hear appeals if it occupies time in
this case in deciding an academic question, the answer to which cannot affect
the respondent ill any way', and added : "-it is an essential quality of
an appeal fit to be disposed of by this House that there should exist between
the parties to a matter in actual controversy which the House undertakes to
decide as a living issue". This statement must apply equally in case of
exercise of appellate jurisdiction by this Court. It would be clearly futile
and meaningless for the Court to decide an academic question, the answer to
which would not affect the position of one party or the other. The Court would
not engage in a fruitless exercise. It would refuse to decide a question,
unless it has a bearing on some right or liability in controversy between the
parties. If the decision of a question would be wholly ineffectual so far as
the parties are concerned, it would be not only unnecessary and pointless but
also inexpedient to decide it and the Court would properly decline to do so. In
the present case, the Orissa Legislative Assembly being dissolved, it has
become academic to consider whether on the date when the nomination was filed,
the respondent was disqualified under s. 9A.
Even if it is found that he was so
disqualified, it would have no practical consequence, because' the invalidation
of his election after the dissolution of the Orissa Legislative Assembly would
be meaningless and ineffectual. it would not hurt him. The disqualification
would only mean that he Was not entitled to contest the election on the date
when he filed his nomination. It would have no consequences operating in
future. It is possible that the respondent had a subsisting contract with the
Government of Orissa at the date of nomination, but that contract may not be
subsisting now. The finding that the respondent was disqualified would be based
on the facts existing at the date of nomination and it would have no relevance
so far as the position at a future point of time may be concerned, and
therefore, in view of the dissolution of the Orissa Legislative Assembly, it
would have no practical interest for either of the parties. Neither would it
benefit the appellant nor should it affect the respondent in any practical
sense and it would be wholly academic to consider whether the respondent was
disqualified on the date of nomination.
The position might be different if the
allegation against the respondent were of corrupt practice. Then it would not
be academic to consider whether or not the respondent was guilty of the corrupt
practice charged against him, because a finding of (1) [1944] A. C. 111.
118 corrupt practice has serious
consequences. If the respondent is found guilty of corrupt practice during the
election, not only his election would be declared void, but he would also incur
certain electoral disqualifications.
Sec. 8A provides that a person found guilty
of a corrupt practice by an order under s.99 shall be disqualified for a period
of six years from the date on which, that order takes effect. The purity of
elections is of utmost importance in a democratic set up and the law has, therefore,
taken serious note of practice in elections and laid down a disqualification
for a period of six years on an order being made by the High Court recording a
finding of corrupt practice at the time of disposing of the election petition.
It is, therefore, obvious that when a corrupt
practice is charged against the respondent in an election petition, the trial
of the election petition must proceed to its logical end and it should be
determined whether the corrupt practice was committed by the respondent or
not., As pointed out by this Court in Sheodhan Singh v. Mohan Lal (1) "no
one can be allowed to corrupt the course of an election and get away with it
either by resigning his membership or because of the fortuitous circumstance of
the assembly having been dissolved. The public are interested in seeing that
those who had corrupted the course of an election are dealt with in accordance
with law." The decision of the question whether corrupt practice was
committed by the respondent or not would not, therefore, be academic and the
Court would have to decide it, even if in the meantime the Legislature is
dissolved. That was precisely the view taken by this Court in Sheodhan Singh v.
Mohan Lal (1). In that case the election of the respondent to the Uttar Pradesh
Legislative Assembly was challenged by the appellant in an election petition on
the ground that the respondent was guilty of corrupt practice during the
election. The Uttar Pradesh Legislative Assembly was dissolved by the President
during the pendency of the election petition before the High Court and a
preliminary objection was, therefore, raised on behalf of the respondent that
the election petition had ceased to be maintainable on account of the
dissolution of the Uttar Pradesh Legislative Assembly. The High Court rejected
the preliminary objection It on merits it took the view that corrupt practice
was not proved and accordingly dismissed the election petition. The appellant
thereupon preferred as appeal to this Court and in the appeal also the same preliminary
objection was repeated on behalf of the respondent. This Court negatived the
preliminary objection.
Hegde, J., speaking on behalf of the Court
emphasised that the charge against the respondent was of corrupt practice and
pointed out that if the creation of the appellant that the respondent was
guilty of corrupt practice was found to be true, then not only his election
would be declared void but he would also be liable to incur certain sectoral
disqualification, and therefore, in the interest of purity of elections it was
necessary that "those who bad corrupted the course of an election are
dealt with in accordance with law", and this purpose would stand defeated
if the election petition were held to become infructuous on the dissolution of
the Assembly. The learned Judge then proceeded to consider the relevant
elections of the Act and after (1) [1959] 3 S.C.R. 417.
119 referring to them, summarised his
conclusion by saying :
"From the above provisions it is seen
that in an election petition the contest is really between the constituency on
the one side and the person or persons complained of on the other. Once the
machinery of the Act is moved by a candidate or an elector, the carriage of the
case does not entirely rest with the petitioner. The reason for the elaborate
provisions noticed by us earlier is to ensure to the extent possible that the
persons who offered the election law are not allowed to avoid the consequences
of their misdeeds." It will be seen that the emphasis in this decision was
on the fact that the charge against the respondent was of corrupt practice and
it was in this context that the Court held that where corrupt practices is
alleged against the respondent in an election petition, the dissolution of the
Legislature during the pendency of the election petition does not render, it
infructuous. We fail to see how the ratio of this decision can have any
application in the present case. Here there is no charge of any corrupt
practice against the respondent. The only ground on which the election of the
respondent is sought to be invalidated is that he was disqualified at the date
of nomination under s. 9A. This disqualification does not involve any act
corrupting the course of an election. It has no other consequence than that of
making the particular election void. It does not entail any electoral
disqualification for the future. There is, therefore, no analogy between the
two situations and this decision cannot be called in aid by the appellant.
The appellant, however, relied on the
following observations in this decision and contended that these observations
clearly lay down that an election petition does not become infructuous on the
dissolution of the Legislature and the petitioner is entitled to have the
decision of the Court upon it, notwithstanding the dissolution of the
Legislature:
"The election petitions in this country
are solely regulated by statutory provisions. Hence unless it is shown that
some statutory provision directly or by necessary implication prescribes that
the pending election petitions stand abated because of the dissolution of the
Assembly, the contention of the respondent cannot be accepted".
"The law relating to withdrawal and
abatement of election petitions is exhaustively dealt with in Chapter IV of Part
VI of the Act. In deciding whether a petition has abated or not we cannot
travel outside the provision providing for the dropping of an election petition
for any reason other than those mentioned therein. The act does not provide for
the abatement of an election petition either when the returned candidate whose
election is challenged resigns or when the assembly is dissolved. As the law
relating to abatements and withdrawal is exhaustively dealt with in the Act
itself no reliance can be placed on the provisions of the Civil Procedure Code
nor did the learned Counsel for the respondent bring to our notice any
provision in the Civil Procedure Code under which the election petition can be
held to have abated" 120 We fail to see how these observations can be of
any help to the appellant. They deal with a totally different contention than
the one advanced before us. It may be noted that in this case the charge
against the respondent was of corrupt practice and it could not, therefore, be
successfully urged on behalf of the respondent that the decision of the
question arising in the appeal had become academic on the dissolution of the
Uttar Pradesh Legislative Assembly. The only contention which the respondent
was, therefore, left with and which he could possibly advance was that an
election petition must be held to abate on the dissolution of, the Legislature
and it was this contention which was dealt with and negatived in these
observations.
This Court pointed out that the law relating
to abatement of election petitions is exhaustively dealt with in Ch. IV of Part
VI of the Act and since there is nothing in the Act which provides for
abatement of an election petition when the Legislature is dissolved, it must be
held that the dissolution of the Legislature does not result in abatement of
the election petition. We express our whole hearted concurrence with this view.
But the question before us is not whether the appeal in the present case abated
on the dissolution of the Orissa Legislative Assembly. That is not the
contention raised on behalf of the respondent. The respondent does not say that
the appeal has abated and must, therefore, be dismissed. What the respondent
contends is that in view of the dissolution of the Orissa Legislative Assembly,
it has become academic to decide the appeal and hence we should decline to hear
it. That is a wholly different contention which is not covered by the
observations quoted above. We do not, therefore, think this decision throws any
light on the contention raised before us. It does not compel us to take a
different view from the one we are inclined to take on principle.
We are, therefore, of the view that, the
Orissa Legislative Assembly being dissolved during the pendency of this appeal,
it is now wholly academic to consider whether the respondent was disqualified
under s. 9A at the date of nomination and since that is the only ground on
which election of the respondent is challenged, we think it would be futile to
hear this appeal on merits. We accordingly dismiss the appeal with no orders as
to costs all throughout.
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