1999 JTR(SC) 599
1999 AIR(SC) 1960 ; 1999 AIR(SCW) 1646 ; 2000 1 AndhWR(SC) 19 ; 1999 4 JT 478 ; 1999 3 RCR(Civ) 220 ; 1999 3 Scale 630 ; 1999 4 SCC 517 ; 1999 2 SCR 1102 ; 1999 2 UJ 992 ; 1999 3 UPLBEC 1685 ; 1999 KHC 1187 ; 1999 5 Supreme 426
1999(5) Supreme 426
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
Dr. A.S. Anand, CJI., M. Jagannadha Rao, J.
Ranjeet Singh -Appellant
versus
Harmohinder Singh Pradhan -Respondent
Civil Appeal No. 2008 of 1998
Decided on 6-5-1999
Counsel for the Parties :
For the Appellant : A.M. Khanwilkar, Sudhir Walia and M.S. Dahiya, Advocates.
For the Respondent : P.P. Rao, Sr. Advocate, Nidhesh Gupta and Ms. Naresh Bakshi, Advocates.
IMPORTANT POINT
Merely becoming a licensee with the State Government cannot amount to either supplying goods to Government or engaging in execution of any work undertaken by the Government.
Act Referred :REPRESENTATION OF THE PEOPLE ACT : S.9(a)
(A) Section 9-A of the Representation of the People Act, 1951, operates as a disqualification provision that applies when a person who is a candidate for election to a legislative body has subsisted, in the course of trade or business, a contract with the appropriate Government for the supply of goods or for the execution of any works undertaken by that Government. In this appeal, the provision is engaged to assess whether the respondent, at the time of filing and scrutiny of the nomination paper in an election to a State Assembly constituency, stood disqualified by reason of a subsisting contract to supply liquor to the State Government that had been entered into through a prior auction and partnership arrangement. The section expressly contemplates that the contract must be one for supply of goods or execution of works undertaken by the Government, and it contemplates a continuing subsistence of the contract at the relevant stages of the election process, while also providing that full performance by the contractor negates the disqualification on the ground of non-performance by the Government.
(B) The key legal principle is that a mere licensing or arrack contracting relationship with the State does not, without more, attract the disqualification under Section 9-A unless it involves a contract for the supply of goods to the Government or the execution of works undertaken by the Government. The court emphasized purposive interpretation to avoid overbreadth, underscoring that the section targets specific conflicts of interest involving active government contracts of a commercial or executory nature, and held that running a public ferry or similar concessions does not fall within the mischief of the provision.
Facts of the case:
The appellant contested an election to a State Assembly constituency held in February 1997. After the declaration of results, the appellant filed an election petition alleging that the respondent, the declared winner, was disqualified under Section 9-A of the Representation of the People Act, 1951, on the grounds that at the time of filing and scrutiny of the nomination paper he subsisted a contract with the State Government for the sale of liquor obtained at an auction as part of a partnership. The respondent denied the allegation, and a preliminary objection was raised that the petition was not maintainable as it failed to disclose any factual basis attracting the provision. The High Court dismissed the petition, holding that the contract did not fall within the ambit of Section 9-A.
Findings of Court:
The High Court found that the contract for sale of liquor was a licensee-type contract and did not constitute either the supply of goods to the Government or the execution of any works undertaken by the Government. This conclusion was consistent with earlier decisions of the High Court and this Court, including an earlier constitutional bench interpretation that running a ferry or similar concessions does not amount to execution of works within the meaning of Section 9-A. The appellate court accepted this reasoning and declined to give a broader scope to the disqualification provision.
Issues:
The primary issue was whether a subsisting contract to sell liquor to the State Government, entered into through an auction and pursued in partnership, amounted to a disqualification under Section 9-A of the Representation of the People Act, 1951, at the stages of filing and scrutiny of the nomination paper. A related issue was whether the election petition was maintainable in view of the preliminary objections that the petition failed to disclose any factual basis attracting the section.
Ratio Decidendi:
The court held that Section 9-A of the Representation of the People Act, 1951, applies only where there is a contract for the supply of goods to, or the execution of works undertaken by, the Government, and a mere licensee or arrack contract for sale of liquor does not satisfy that threshold; consequently, the respondent did not suffer from any disqualification and the election was valid.
Result:
The appeal is dismissed without any order as to costs, and the election of the respondent is upheld.
(A) Section 9-A of the Representation of the People Act, 1951, operates as a disqualification provision that applies when a person who is a candidate for election to a legislative body has subsisted, in the course of trade or business, a contract with the appropriate Government for the supply of goods or for the execution of any works undertaken by that Government. In this appeal, the provision is engaged to assess whether the respondent, at the time of filing and scrutiny of the nomination paper in an election to a State Assembly constituency, stood disqualified by reason of a subsisting contract to supply liquor to the State Government that had been entered into through a prior auction and partnership arrangement. The section expressly contemplates that the contract must be one for supply of goods or execution of works undertaken by the Government, and it contemplates a continuing subsistence of the contract at the relevant stages of the election process, while also providing that full performance by the contractor negates the disqualification on the ground of non-performance by the Government.
(B) The key legal principle is that a mere licensing or arrack contracting relationship with the State does not, without more, attract the disqualification under Section 9-A unless it involves a contract for the supply of goods to the Government or the execution of works undertaken by the Government. The court emphasized purposive interpretation to avoid overbreadth, underscoring that the section targets specific conflicts of interest involving active government contracts of a commercial or executory nature, and held that running a public ferry or similar concessions does not fall within the mischief of the provision.
Facts of the case:
The appellant contested an election to a State Assembly constituency held in February 1997. After the declaration of results, the appellant filed an election petition alleging that the respondent, the declared winner, was disqualified under Section 9-A of the Representation of the People Act, 1951, on the grounds that at the time of filing and scrutiny of the nomination paper he subsisted a contract with the State Government for the sale of liquor obtained at an auction as part of a partnership. The respondent denied the allegation, and a preliminary objection was raised that the petition was not maintainable as it failed to disclose any factual basis attracting the provision. The High Court dismissed the petition, holding that the contract did not fall within the ambit of Section 9-A.
Findings of Court:
The High Court found that the contract for sale of liquor was a licensee-type contract and did not constitute either the supply of goods to the Government or the execution of any works undertaken by the Government. This conclusion was consistent with earlier decisions of the High Court and this Court, including an earlier constitutional bench interpretation that running a ferry or similar concessions does not amount to execution of works within the meaning of Section 9-A. The appellate court accepted this reasoning and declined to give a broader scope to the disqualification provision.
Issues:
The primary issue was whether a subsisting contract to sell liquor to the State Government, entered into through an auction and pursued in partnership, amounted to a disqualification under Section 9-A of the Representation of the People Act, 1951, at the stages of filing and scrutiny of the nomination paper. A related issue was whether the election petition was maintainable in view of the preliminary objections that the petition failed to disclose any factual basis attracting the section.
Ratio Decidendi:
The court held that Section 9-A of the Representation of the People Act, 1951, applies only where there is a contract for the supply of goods to, or the execution of works undertaken by, the Government, and a mere licensee or arrack contract for sale of liquor does not satisfy that threshold; consequently, the respondent did not suffer from any disqualification and the election was valid.
Result:
The appeal is dismissed without any order as to costs, and the election of the respondent is upheld.
JUDGMENT
Dr. Anand, CJI.-This appeal calls in question the judgment and order of the High Court of Punjab & Haryana in Election Petition No. 7 of 1997 decided on 29th September, 1997. The appeal arises in the following circumstances.
2. The appellant contested the election to 54 Raikot Assembly Constituency in the general elections to the Punjab Legislative Assembly held on 7th February, 1997. The respondent, a candidate of the Indian National Congress, was declared elected, After the declaration of the result of the elections on 10th February, 1997, the appellant filed an election petition in the High Court alleging that the respondent was disqualified from contesting the election to the Punjab Legislative Assembly under Section 9-A of the Representation of People Act, 1951 (hereinafter referred to as "the Act") as on the date of the filing of the nomination paper as well as on the date of the scrutiny of the nomination paper, the respondent had a subsisting contract, for the sale of liquor, with the Punjab Government, which he had obtained in partnership with others at the auction held for the year 1996-97. The petition was resisted by the respondent who in the written statement denied the allegations concerning his disqualification. A preliminary objection was raised that the election petition was not maintainable as the same did not disclose any factual basis to establish violation of Section 9-A of the Act. It was asserted that the election petition did not contain any allegation to the effect 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 could not be said to have incurred any disqualification under Section 9-A of the Act. The respondent further pleaded that the contract for sale of liquor was not such a contract to which the provisions of Section 9-A of the Act could be attracted. Replication was filed and from the pleadings of the parties, the following issues were raised :
"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
2. Whether the election petition is not maintainable in view of the objections raised in Para Nos. 1 and 2 of the preliminary objections? OPR.
3. Whether the election of the respondent to the Punjab Assembly from 54-Raikot Assembly Constituency - is valid for the reasons stated in the petition? OPP.
4. Relief."
3. The parties led evidence and after hearing their arguments, the High Court dismissed the election petition.
4. Since, the challenge in the election petition to the election of the respondent, as canvassed before the High Court and before us, is based on Section 9-A of the Act, it would be desirable to first notice the provisions of that Section. Section 9-A reads :
"9-A. Disqualification for Government contractors, 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 purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its parts of the contract either wholly or in part."
5. On its plain reading, Section 9-A of the Act requires (i) that there must be a subsisting contract which has been entered into by the person whose candidature is sought to be disqualified with the Government; (ii) that contract is for the supply of goods to the Government, or (iii) that the contract is for the execution of any works undertaken by the Government.
6. The High Court held that Section 9-A of the Act was not attracted in the fact situation of the case. In taking this view, the High Court relied upon a judgment given by the Andhra Pradesh High Court in B. Lakshmikantha Rao v. D. Chinna Mallaiah1, which has been approved by this Court in Dewan Joynal Abedin v. Abdul Wazed alias Abdul Wazad Miah & Ors.2. According to both these judgments, merely becoming a licensee with the State Government, cannot amount to either supplying the goods to the Government or engaging in execution of any work undertaken by the Government. Learned counsel for the appellant fairly conceded that it was not a case of supply of goods to the Government but maintained that the subsisting contract between the respondent and the Government amounted to execution of any work undertaken by the Government .
In Dewan Joynal (supra), this Court interpreted the word works as used in Section 9-A of the Act and opined :
".......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 the Shorter Oxford Dictionary the expression `work 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 under Section 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."
8. We find ourselves unable to agree with the learned counsel for the appellant that keeping in view the purpose for which Section 9-A of the Act was enacted, namely, to avoid any conflict between private interest and public duty, a broad interpretation should be placed on Section 9-A.
9. Section 9-A is a statutory provision which imposes a disqualification on a citizen. It would, therefore, be unreasonable to take a general or broad view, ignoring the essentials of the Section and the intention of the legislature. Purposive interpretation is necessary. In Dewan Joynal s case (supra), Section 9-A of the Act has been correctly interpreted in the following words :
"An analysis of Section 9-A of the Act shows that only in two cases a person would be disqualified if he has entered into a contract with the appropriate government in the course of his trade or business which is subsisting on the date of scrutiny of nomination. They are (i) when the contract is one for supply of goods to the appropriate government and (ii) where the contract is for the execution of any works undertaken by that government. ......... ................................
........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."
10. We agree with the aforesaid view.
11. No other point has been urged.
12. For what we have said above, we find that there is no merit in this appeal. It is, accordingly, dismissed, but without any order as to costs.
(S.P.M.) Appeal dismissed.
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Parallel Citations of other Journals :
Ranjeet Singh v. Harmohinder Singh Pradhan, 1999(5) Supreme 426 : (1999) 4 SCC 517 : 1999(3) CCC 24 : AIR 1999 SC 1960 : 1999(2) UJ 992