Jugal Kishore Patnaik Vs. Ratnakar
Mohanty  INSC 158 (26 July 1976)
KHANNA, HANS RAJ KHANNA, HANS RAJ
CITATION: 1976 AIR 2130 1977 SCR (1) 49 1977
SCC (1) 567
Representation of the People Act, 1951--S. 9
A.--Contract signed as President, Gram panchayat--Rejection of nomination
paper--if valid--Improper rejection--If Courts could give relief under s.
On the ground that there were subsisting
contracts between him and the State Government for execution of certain works,
the nomination papers of the respondent for the general election to the State
Assembly were rejected by the Returning Officer under s. 9A of the
Representation of the People Act, 1951 at the instance of one of the contesting
candidates. In the election that ensued the appellant was declared elected. The
respondent in his election petition contended that the works on account of
which he had been disqualified had been undertaken by him, not in his personal
capacity, but as the Sarpanch of the Gram Panchayat. The High Court held that
the respondent was not disqualified under s. 9A of the Act and declared the
On appeal, it was contended that the
objections regarding the validity of the nomination papers of the respondent
were raised in collusion with the respondent and a duly elected candidate
should not be made to suffer because of an order made on such collusive
Dismissing the appeal,
HELD: (1 )(a) The appellant has clearly
admitted in his written statement that objections which were filed about the
validity of the respondent's nomination papers were not collusive but genuine.
[53 G] (b) According to Sec. 100(1)(c) of the Act, if the High Court is of the
opinion that any nomination had been improperly rejected, it shall declare the
election of the returned candidate to be void. In view of the imperative nature
of the provision, it is open to question as to whether courts can, in the event
of an improper rejection of nomination, afford relief to the successful
candidate on the score that the objections resulting in the improper rejection
of nomination, were collusive. Whether the legislature would do something in
the matter is essentially for the legislature to decide, [53 G-H] (2) A perusal
of one of the disputed items shows that the tender in respect of the work was
accepted on behalf of a Cooperative Society of which the respondent was the
President. It was not the respondent but the Society which entered into
contract for the execution of the work and he signed the documents in his
capacity as President of the Society. The contract was not subsisting on the
date of filing of the nomination paper. In respect of another item the contract
was not entered into with the. respondent in his personal capacity but the work
had to be executed by the Gram Panchayat. [54F-G] Krishna Iyer J. (concurring)
(1) In the instant case the Returning Officer was taken in by the specious plea
that the respondent had` subsisting contracts with the State Government an&
rejected his nomination papers. Its aftermath was that the. people's verdict
had been stultified. Had there been any procedure for quick determination of
objections to nominations with early appellate finality attached to it, the
lurking danger of the whole process being ultimately baulked on account of
antecedent official error would not have arisen. [56 C] (2) The ambiguity in s.
9A, especially as to how long and in what sense can a contract be said to be
subsisting envelopes the disbarment provision with subtle legal questions such
as: how long does a contract subsist ? Is every 50 liability arising on a
breach of contract a claim under the contract the Provisions of s . A9 ? If
Government money is involved in the execution of the work does the contract
necessarily become one with Government ? It is very desirable that the
disqualificatory net should not be cast too wide to disfranchise innumerable
persons and must be easy of ascertainment if must be uncertainty is not to
overhang elections [56 EH]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 910 of 1970.
(From the Judgment and order dated 16-6-1975
of the Orissa High Court in Election Petition No. 1/74).
D.P. Singh, R.P. Singh, Rajiv Dutta, Mrs.
Nilma, L.R. Singh and R.K. Jain, for the Appellant.
Santosh Chatterjee, G.S. Chaterjee and D.P.
Mukherjee, for the Respondent.
The Judgment of H.R. Khanna and N.L.
Untwalia, JJ. was delivered by Khanna, J. V. R. Krishna Iyer, J gave a separate
concur ring opinion.
KHANNA, J. On an election petition filed by
Ratnakar Mohanty respondent, the election of Jugal Kishore Patnaik appellant to
the Orissa Legislative Assembly from Bhadrak constituency was declared to be
void by the Orissa High Court and as such set aside. The appellant has filed
the present appeal against the judgment of the High Court.
Bhadrak assembly constituency is a
single-member general constituency. During the general elections to the Orissa
Legislative Assembly held in February 1974, the respondent filed four
nomination papers for being elected from this constituency. At the time of
scrutiny on January 36, 1974, objection was raised at the instance of Balaram
Sahu, one of the contesting candidates, before the Returning Officer that the
respondent was disqualified for being chosen as a member of the Assembly as
there subsisted contracts between him and the Government of Orissa for
execution of certain works. The respondent, it was accordingly asserted, was
disqualified under section 9A of the Representation of the People Act, 1951 (hereinafter
referred to as the Act) from seeking election. Some documents were also
produced before the Returning Officer to show that proceedings had been
initiated by the Block Development Officer for realisation of certain amounts
alleged to be due under those contracts from the respondent. The Returning
Officer upheld the objection and rejected the nomination papers of the respondent.
Four candidates contested the election, but
the main contest was between the appellant, a Congress nominee, who secured
25,522 votes, and Balaram Sahu, art Utkal Congress nominee, who secured 18,723
votes. The result of the election was declared on February 28, 1974. Petition
challenge the election of the appellant was
filed by the respondent on April 12, 1974.
The case of the respondent as set up in the
election petition was that his nomination papers had been improperly rejected
by the Returning Officer. According to the respondent, the works on account 51
of which he had been held to be disqualified by the Returning Officer had been
undertaken by him not in his personal capacity but as the Sarpanch of Rahanj
Gram Panchayat under the Bhadrak Panchayat Samiti. The respondent, therefore,
prayed that the election of the appellant be declared to be void.
The petition was resisted by the appellant.
Objections were raised on his behalf that the petition was liable to be
dismissed for non-compliance with sections 81, 82 and 83 of the Act. It was
also averred that the nomination papers filed by the respondent were not in
conformity with sections 33 and 34 of the Act. On merits, the appellant stated
that the respondent was disqualified under section 9A of the Act from seeking
election to the Legislative Assembly of Orissa because he had on the date of
filing of the nomination papers subsisting contracts with the Government of
Orissa in course of his trade and business for execution of work undertaken by
the Government. Following issues were framed by the High Court:
1. Is the election petition liable to be
dismissed for noncompliance of sections 81, 82 and 83 of the Representation of
the People Act, 1951 ?
2. Whether the nomination paper filed by the
petitioner was in substantial compliance of sections 33 and 34 of the
Representation of the People Act, 1951 ?
3. Was the petitioner disqualified under
section 9A of the Representation of the People Act, 1951 having subsisting
contract with the Government of Orissa in course of his trade and business for
execution of work undertaken by the Government on the date of the filing of the
4. To what relief, if any, the petitioner is
entitled to in the facts and circumstances of the case ?" Issues (1) to
(3) were decided by the High Court in favour of the respondent and against the
appellant. In the result, the election of the appellant was declared to be
In appeal before us Mr. D.P. Singh has at the
outset assailed on behalf of the appellant the finding of the High Court on
issue No. (1 ). The challenge to the finding on issue No. (1 ) is, however,
confined only to alleged infraction of sub-section (3) of section 81 of the
According to that sub-section, every election
petition shall be accompanied by as many copies thereof as there are respondents
mentioned in the petition, and every such copy shall be attested by the
petitioner under his own signature to be a true copy of the petition. Mr. Singh
contends that no attested copy of the election petition signed by the
petitioner was filed along with the petition. This contention has been: controverted
by Mr. Chatterjee on behalf of the respondent, who submits that a copy of the
petition attested by the respondent under his own signature was filed along
with the petition. It is further pointed out that the said attested copy of the
petition was sent along with the 52 summons to the appellant, but as., he
declined to accept the summons, the attested copy along with the summons was affixed
at his residence. The above stand of the respondent is borne out by the report
of the process server.
Mr. Singh has assailed the correctness of the
above report of the process server, and has contended that in the index
attached to the petition there was no reference to the copy. As against that,
it is submitted on behalf of the respondent that it is not the usual practice
in the High Court to refer to the copy of the petition in the index.
There are, in our opinion, some broad facts
of the case which lend support to the finding of the High Court on issue No. (1
) that the election petition was accompanied by an attested copy signed by the
respondent. Endorsement dated April 15, 1974 made by an officer of the High
Court shows that a copy of the election petition had been flied.
We find no cogent reason as to why an officer
of the High Court should make a false endorsement on the petition if,, in fact,
no such copy had been filed. As regards the factum o.f the, attestation of the
copy by the respondent under his own signature we find that the appellant
cannot in the very nature of things assert positively that the copy had not
been attested by the respondent as, according to. him, he did not see that
copy. The copy was also not available on the record as the same had been
affixed at the residence of the appellant when he, according to the report of
the process server, declined to accept the summons. Before summons were issued
to the appellant, the following endorsement was made by an officer of the High
Court in respect of the election petition flied by the respondent:
"Defect Nil." We see no cogent
ground to question the correctness of this endorsement which clearly lends
support to the inference that the copy filed with the petition had been
attested by the respondent and that the petition did not suffer from lack of
compliance with the: procedural requirement.
Mr. Singh has next assailed the correctness
of the, finding of the High Court on issue No. (2). It is urged that the
respondent obtained signatures of his proposers on blank nomination papers,
subsequently filled in the columns and then filed the nomination papers. It is,
in our opinion not necessary to express opinion about three of the nomination
papers as we find that one of the, nomination papers in.
any case did not suffer from any such alleged
This nomination paper of the respondent was
signed by Lakshmikant Mahapotra (PW 3 ) as proposer. Evidence of this witness
dearly shows that he signed, the nomination paper as proposer of the respondent
after the various columns in that paper had been filled in. Nothing has been
brought to our notice as to why the statement of the witness in this respect be
not accepted. As at least one of the nomination papers filed by the respondent
was in compliance with the.
legal requirement,. the High Court, in our
opinion, correctly decided issue No. (2). In view of the above finding, it is
not necessary to express opinion on the point as to whether a nomination paper
should be hold to be invalid in case the 53 signature of the proposer is
obtained before filling in the columns of the nomination paper.
It has been faintly argued that Balaram Sahu,
who raised objection to the validity of the nomination papers of the
respondent, was not impleaded as a party in the election petition and as such
the: petition was liable to be dismissed for non-joinder of parties. This
submission too is bereft of force. According to section 82 of the Act, a
petitioner shall join as respondents to his petition where the petitioner, in
addition to claiming a declaration that the election of all or any of the
returned candidates is void, claims a further declaration that he himself or
any other candidates has, been duly elected, all the contesting candidates
other than the petitioner, and where no such further declaration is claimed,
all the returned candidates.
It is further provided that if allegations of
any corrupt practice are made in the petition against any other candidate, he
too shall be joined as a respondent. In the present case, there was no prayer
made by the respondent in the election petition that he or any other person
should be declared to have been duly elected. There was also no allegation of
corrupt practice against any candidate. In the circumstances, the requirements
of law should be held to be fully satisfied when the respondent impleaded the
successful candidate, namely, the appellant, as a respondent in the petition.
Contention has also been advanced on behalf
of the appellant that the objections of Balaram Sahu before the Returning
Officer about the validity of the nomination papers of the respondent were
raised in collusion with the respondent. The appellant, who has been duly
elected,, should not, according to the contention, suffer because of any order
made on such collusive objections. In this respect we find that .there is no
factual basis for the assertion that the objections which were raised by
Balaram Sahu about the validity of the nomination papers of the respondent were
of collusive character. On the contrary, the appellant in the course of his
written statement stated in respect of the objections as under:
"At the time of the scrutiny valid and
genuine objections were filed against the petitioner on the ground that there
was subsisting contract between the petitioner and the Government of Orissa and
as such he was disqualified to be a candidate." In view of the unequivocal
assertion of the appellant in the written statement that the objections were
valid and genuine, it would not be permissible for the appellant to take an
inconsistent stand in appeal and urge that those objections had been filed in
collusion with the. respondent.
Apart from that, we find that according to
section 100 (1) (e) of the Act, if the High Court is of the opinion that any
nomination has been improperly rejected, it shall declare the election of the
returned candidate to be void. In view of the imperative nature of the
provision, it is open to question as to whether the courts cam in the event of
an improper rejection of nomination, afford relief to the successful candidate
on the score that the objections resulting in the improper rejection of the
nomination, were collusive. Whether the legislature would do something in the
matter is essentially for the legislature to 54 decide. We need not, however,
dilate upon this aspect of this case in the face of our finding that the
appellant has clearly admitted in the written statement that the objections
which were filed about the validity of the nomination papers of the respondent
were not collusive but were genuine.
Lastly, Mr. Singh has assailed the finding of
the High Court on issue No. (3). Although during the course of the trial of the
election petition the appellant relied upon 15 items to show that the
respondent had entered into works contracts with the State Government, in this
Court Mr. Singh has ,confined his argument to only two items, namely, item No.
(1) and item No. (8). Item No. (1) relates to an advance of Rs. 100 for repair
of Erein School. The case of the respondent is that the above amount was
received by him as Sarpanch of Gram Panchayat Rahanj and that the said work had
to be executed by that Gram Panchayat and not by the respondent personally. The
High Court accepted the stand of the respondent, and we find no cogent ground
to take a different view. Ex. 43 is letter dated December 3, 1968 signed by the
Sub-Divisional Officer Bhadrak to the Certificate Officer for recovery of Rs.
7,017/-. This letter shows that the aggregate sum of Rs. 7,017, of which Rs.
100 was a part, constituted the fund of the Gram Panchayat.. Order dated May
25, 1965 of the Block Development Officer also shows that the work on account
of which Rs. 100 were paid had to be executed through the agency of Rahani Gram
Panchayat. To similar effect is the statement of PW 9 Khageswar Roy. Block
Development Officer. The evidence of this witness shows that the amount in
question was given to the Gram Panchayat for repair work. The above material,
in our opinion,, clearly shows that the contract for the execution of the
repair work, which is the subject matter of item No. (1 ), was not entered into
with the respondent in his personal capacity and that the said work had to be.
executed by the Gram Panchayat.
So far as item No. (8) is concerned, the same
relates to work of wooden culvert No. 9 on Jamujhari Khirkona road.
Ex. 55 is the written agreement relating to
Perusal of the agreement makes it clear that
the tender in respect of this work was accepted on behalf of the Modern Labour
Co-operative Contract Society, of which the respondent was the PreSident. The document
thus shows that it was not the respondent but the society which entered into
contrac to the execution of the above work, and the respondent signed the
document in his capacity as the President of that Society.
Apart from the above, we agree with the High
Court that the above contract was not subsisting on the date of the filing of
the nomination paper. The agreement for the execution of the above work was
dated May 8, 1964. On November 24., 1966 an order was made by the Block Development
Officer that the construction work of the culvert had been completed since long
and final measurements too had already been made. The total work was found to
be worth Rs.
4,253.70. It was further observed in the
order that Rs. 722 should be paid on account of the above work after deducting
the previous advances and cost of the material. The contractor was directed to
return the material used in the tubewell. The above order of the Block
Development 55 Officer shows that the cost of the material and the amounts
advanced to tile respondent were deducted before direction was given for
payment of Rs. 722 to the contractor. Mr.
Singh has laid particular stress upon the
direction in the order of the Block Development Officer that the contractor
should return the material used in the tubewell. In respect of the material
used in the tubewell, it appears to us that the said material was also returned
by the contractor the same day the order was made. According to the testimony
of RW 11 J.K. Satpathy Block Development Officer, if the material required to
be returned as per that last order was not returned, the final bill amount in
respect of that work could not have been paid. Rs. 722 were, however,
admittedly paid on November 24, 1966. The factum of that payment clearly points
to the conclusion that the contractor returned the material used in the
tubewell before the payment of Rs. 722 was made to him. There is also nothing
to show that any demand was made' to the contractor subsequent to 1966 for
return of the material used in the tubewell. The absence of any such demand,
even though a long period has elapsed since 1966, clearly goes to show that no,
material used in the, tubewell remained with the contractor. It cannot,
therefore be said that the said contract was subsisting on the date the
respondent filed his nomination paper. We consequently uphold the finding of
the High Court on items (1) and (8) under issue No. (3).
As a result of the above, we dismiss the
appeal, but in the circumstances without costs.
KRISHNA IYER, J., Whole-hearted is my
agreement with the judgment of my learned brother Khanna J., both in the conclusions
and in the reasonings. This does not obviate an extra opinion on certain
deeper, though peripheral, aspects of the law thrown up. by the facts,
disturbing in their implications and laying bare certain gaping gaps in the
election law. In a democracy,, the electoral process has a strategic role and
in India it has constitutional status although canalysed by the Representation
of the People Act, 1951 (hereinafter called the Act). Lord Holt long ago
observed:(1) "A right that a man has to give his vote at an election of a
person to represent him in Parliament, there to concur to. the making of laws,
which are to bind his liberty and property, is a most transcendent thing, and
of an high nature, and the law takes notice of it as such in divers statutes
...... The right of voting at the election of burgesses is a thing of highest
importance, and so great a privilege, that it is a great injury to deprive the
plaintiff of it ...... " And, if I may add,, this widespread right belongs
to every common citizen.
In such circumstances, no one can gainsay the
need for the provisions regulating disqualifications affecting the adult
franchise to run for -elective office to be fool-proof to that degree that the
little man of India may confidently participate in the political process
without being exposed to booby traps of the law.
Quoted in University of Pensylvania Law
Review 1968 p. 24 (Vol. 117).
56 In this case an election was honestly
fought and won by the appellant but the verdict has been reduced to a Dead Sea
fruit by a surprise blow of the law because the respondent's nomination, on the
captious objection of the defeated candidate (the appellant being innocent, at
that stage, of raising any obstructive tactic), was illegally rejected The
facts, already set out by my learned brother, disclose that the wrong rejection
by the Returning Officer was on the score that he had subsisting contracts with
the State Government. This ground was plausibly urged before the Returning
Officer by a candidate who polled poorly. The Officer was taken in by the
specious plea and rejected the respondent's nomination.. Its aftermath, long
after the election was fought and won, is that people's verdict has been
stultified and its victim is the then innocent appellant. Had there been any
procedure for double-quick determination of objections to nominations with
early appellate finality attached to it, the lurking danger of the whole
process being ultimately baulked on account of antecedent official error would
not have arisen--a consummation devoutly to be wished. Nor does it require
great imagination to make provision in this behalf, but its omission has led to
the martyrdom of the appellant and the orphanage of the electorate.
Yet another legislative insufficiency
surrounding s. 9A of the Act needs to be highlighted. This provision, as has
been explained earlier by my learned brother, disqualifies a person from being
a candidate if there subsists a contract entered into by him in the course of
his trade or business with the appropriate government for the supply of goods
to, or for the execution of any works undertaken by, that government. It is
followed by an Explanation which is more or less a legal fiction. The rugged
edges of ambiguity of s. 9A especially as to how long and in what sense can a
contract be said to be subsisting envelop the disbarment provision with subtle
legal questions. The common man of India is the .potential candidate and is he
to risk his candidature en the niceties of the law of contracts ? In this
context we must remember that the vast and various developmental works
undertaken by the State and its subsidiaries and executed by a large number of
little construction contractors made it very desirable that the
disqualificatory net should not be cast too wide to disfranchise innumerable
persons and must be easy of ascertainment if uncertainty is not to overhang
elections in our political system. In this very case several problems were
mooted, somewhat difficult to answer. How long does a contract subsist ? Is
every liability arising on a breach of contract, a claim under the contract
attracting the lethal coils of s. 9A ? If government money is involved in the
execution of the work. does the contract necessarily become one with government
? A host of other questions may mystify the legal imports of the taboo s. 9A
sets out and yet every lay man is imperilled by this vague provision in the
exercise of his electoral right. Such a brooding fear and haunting provisions
is counterproductive and may perhaps have to be redrafted in the light of
experience in court. These are problems not of high-sounding law but affecting
the common man in the exercise of his most democratic right. Nietzche once
said: ,The great problems are in the streets. The inaugural error in the
drawing up of our election law, as is illustrated by this 57 case, is that
sophisticated provisions amenable to logicolinguistic feats or subtle
interpretation of civil law ill suit a regulatory area of the political process
where the small individual offers himself for electoral contest. I choose to
make these observations and draw the attention of the concerned instrumentalities
only because in my humble view the court has an activist role to tell the
nation, through its judgment or other designated channels where the law
misfires, or how the law stands in need of reform. This case therefore induces
me to make what may be regarded as obiter:
"The little case, the ordinary case, is
a constant occasion and vehicle for creative choice and creative activity, for
the shaping and on-going reshaping of our law."(1) More than a hundred
years ago Lord Chancellor Westbury made certain seminal observations(2):
"The first thing, then, that strikes
every member of our profession who directs his mind beyond the daily practical
necessity of the cases which come before him is, that We have no machinery for
noting, arranging, generalising and deducing conclusions from the observations
which every scientific mind could naturally make on the way in which the law is
worked in the country ......
Take any particular department of the common
law--take, if you please, any particular statute. Why is there not a body of
men in this country whose duty it is to collect a body of judicial statistics,
or, in the more common phrase, make the necessary experiments to see how far
the law is fitted to the exigencies of society, the necessities of the times,
the growth of wealth, and the progress of mankind ? .... " Way back in
1921,, Benjamin N. Cardozo, then a Judge of New York's highest court, said :(3)
"The Courts are not helped as they could and ought to be in the adaptation
of law to justice.
The reason they are not helped is because
there is no one whose business it is to give warning that help is needed
....... We must have a courier who will carry the tidings of distress ...... Today
courts and legislature work in separation and aloofness. The penalty is paid
both in the wasted effort of production and in the lowered quality of the
product. On the one side, the judges, left to fight against anachronism and
injustice by the methods of judge-made law, are distracted by the conflicting
promptings of justice and logic, of consistency and mercy, and the output of
their labors bears the token of the strain. On the other side, the legislature,
informed only casually and intermittently of the needs and problems of the
courts, without expert or responsible or disinterested or systematic advice (1)
Quoted in (1961-62) Vol. 71 Yale Law Jownal p.
(2) Quoted in Vol. 128, Mod. L.R.p. 1.
(3) Address to the Association of the Bar of
the City of New York quoted in (3) supra.
6--1003 SCI/76 58 as to the workings of one
rule or another, patches the fabric here and there, and mars often when it
would mend. Legislature and courts move on in proud and silent isolation. Some
agency must be found to.
mediate between them." May be, as has
been done in the State of New York, the establishment of a Law Revision
Commission charged with comprehensive law reform duties with direct link with
the law court may go a long way to meet the felt need.