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R. Deshpande Vs. Muttam Reddy and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberSpecial Appeal No. 7 of 1958
Judge
Reported inAIR1961AP180
ActsRepresentation of the People Act, 1951 - Sections 7; Representation of the People (Amendment) Act, 1956; Hyderabad Forest Rules, 1355F - Rule 24(1); Hyderabad Forest Act, 1355F - Sections 32
AppellantR. Deshpande
RespondentMuttam Reddy and ors.
Appellant AdvocateGapalrao Ekbote and ;Tej Rai Kapoor, Advs.
Respondent AdvocateB.C. Jain and ;C.P. Sarathy, Advs.
DispositionAppeal dismissed
Excerpt:
.....aside election by which defendant was elected - alleged that there was a subsisting 'beedi' leaves contract between defendant and government and defendant was disqualified by virtue of section 7 - nature of 'beedi' leaves contract is such that no supply of goods or execution of any work for government is envisaged - contract is to pick up and remove 'beedi' leaves from forest - not a contract directly for performance of service or ancillary to performance of any such service - no disqualification proved. - - 1. this appeal is directed against the order of the election tribunal, secunderabad, dismissing the petition filed by the appellant under sections 30 and 81 of the representation of the people act, 1951, as amended by act xxvii of 1956 (hereinafter called the act). the..........the evidence and proceeded):5. there now remains the contention that there was a subsisting beedi-leaves contract between the 1st respondent and the government, disqualifying him from being elected under the inhibition contained in section 7(d) which is as under:'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 statex x(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;'the 1st respondent does not deny the execution of.....
Judgment:

Jaganmohan Reddy, J.

1. This appeal is directed against the order of the Election Tribunal, Secunderabad, dismissing the petition filed by the appellant under Sections 30 and 81 of the Representation of the People Act, 1951, as amended by Act XXVII of 1956 (hereinafter called the Act). The appellant is the defeated Congress candidate who obtained 8,700 votes in the elections for the Legislative Assembly from the Adilabad Constituency, the polling tor which took place on the 4th of March 1957.

The 1st respondent is the successful Socialist candidate who polled 9,423 votes. The 2nd respondent was an independent candidate who obtained 4,897 votes, while respondents 3, 4 and 5, though candidates at the election had withdrawn from the contest and so remained ex parte before the Election Tribunal. The appellant alleged five grounds for setting aside the election of the 1st respondent, namely: (1) On the morning of the polling day at the village Scan, the 1st respondent through Gajapathi Rao and Saya Gowd of the same village, induced the Bhois, Washermen and the Harijan voters of the village to cast their votes for him by providing them with free liquor. (2) He bribed the women voters of the said village to secure votes for him by the payment of Rs. 0-4-0 to Rs. 0-6-0 each. (3) On the same day his agent, one Krishna Rao, induced the voters of the village of Gularnadugu to vote for him by providing them free liquor. (4) He, through his brother Chenna Reddy, the Patwari of that village, induced the voters to vote for him on pain that if they did not vote in the manner suggested by hint, the Government revenues will be doubled..

It is further alleged that the said Chenna Reddy distributed polling chits filled in his own hand and secured votes for the 1st respondent about which a complaint was lodged by the appellant with the Returning Officer on 3-3-1957. (5) The 1st respondent was a beedi-leaf contractor of the

Government for the villages of Kamalkot and herelli in 1956 which contract was subsisting at the time the nomination papers were filed.

2. The Election Tribunal framed four issues with respect to these allegations, the first issue comprising the first two allegations and the other three covering the rest of the allegations. The Tribunal held all the issues against the appellant both on facts and on the question of law and dismissed the petition.

3-4. In this appeal the learned advocate to the appellant submitted that he does not wish to press allegations 1 to 3, the subject-matter of issues 1 and 2, as he would not be justified on the evidence to contest the findings of the Tribunal. Wife respect to the allegation covered by issue 3, the 1st respondent's case was that though Chenow Reddy is his brother, he is not the Patwari of the village, nor did he distribute the chits written in his hand, nor did he threaten the villagers.

The Tribunal held, firstly, that the appellant did not prove that the chits alleged to have been distributed by Chenna Reddy were in big hand-writing and secondly that the appellant did not prove that Chenna Reddy threatened the villagers that if they did not vote for the 1st respondent the Government revenues would be doubled. In this view the Tribunal did not express any view on the further question raised before it, whether the corrupt practice alleged fell within the mischief of Section 123(7) of the Act.

Learned advocate raised similar contentimes before us. Section 123 of the Act enumerates cer-tain corrupt practices for the purposes of the Act and Sub-section (7) specifies as a corrupt practice the obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any persor in the service of the Government and belonging to any of the following classes enumerated therein, in which the revenue officers including village accountants, such as patwaris, karnams, etc., are also listed.

It is true that the appellant submitted & petition on 3-3-1957 (Ex. 12) to the Returning 'Officer, Nirmal Constituency, in which he stated that Chenna Reddy, the Patwari is propagating for his brother, which is highly objectionable and requested that necessary action may be taken against Ac Patwari. It appears from the report of the Tahisid-dar, Ex. P-13, dated 17-4-1957 that the appellant had made an oral representation to him at 8 p.m, on 3-3-1957 and that he consulted the Deputy Col-lector, Adilabad, who was also there and then PMK ceeded to Koratkal to see if this was so.

On reaching the place, when he found that Narayana Reddy, the patwari of the village was not there and the election staff were finding it difficult to make their arrangements, he immediately placed him under suspension for absenting himself from duty, that one R. V. Ramarao who was in the village informed him that the patwari had issued some parly poll chits, as such he asked some to be produced, so that necessary action could be taken. It is in evidence and now admitted that

Chenna Reddy was not the patwari of Koratkal, but of the village Tandra and that his younger brother, Narayana Reddy is in fact the patwari af Koratkal.

Before the question, whether the polling chits given by the patwari of another village can be deemed as a corrupt practice within the meaning of Section 123(7), it would be necessary to consider whether Chenna Reddy had given any polling chits asking the voters to vote for the symbol 'TREE' which was assigned to the Socialist party, or that he threatened the voters as alleged. On a perusal of the evidence adduced in this behalf, we think that the Tribunal was fully justified in holding that this allegation is not proved. (His Lordship then discussed the evidence and proceeded):

5. There now remains the contention that there was a subsisting Beedi-leaves contract between the 1st respondent and the Government, disqualifying him from being elected under the inhibition contained in Section 7(d) which is as under:

'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

x x(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;'

The 1st respondent does not deny the execution of the contract, Ex. B-1 which was entered into between him and the Government on the 9th February, 1956. According to the terms of the agreement it enures till the 30th day of September, 1956, so that clearly on the dale of the ejection, the contract had expired. It is true, as contended by the learned advocate for the appellant, that though the contract might expire, the obligations under the contract may still subsist and the 1st respondent can, notwithstanding the expiry of the dale, be still deemed to be a contractor of the Government.

The question in this case is whether the terms of the contract, read with the Forest Act and the rules, made thereunder, deem it a contract for the supply of goods or the execution of any works or the performance of any services undertaken by the appropriate Government. The nature of the Beedi-leaves contract is such that no supply of goods or execution of any works to or for the Government is envisaged. The Government for a consideration selk the Beedi-leaves in forest areas specified in the contract to the contractor (the Mustazar) who should within the period of the contract, pick the Beedi-leaves and remove them from the forest.

Learned advocate, Shri Ekbote, contends that the terms of the contract read with the provisions of the Forest Act and the rules thereunder require the contractor to act in a certain way and to do certain things before he can pick the leaves. This contract allowing the contractor to pick the beedi-leavcs is designed to keep the forest in a proper condition and consequently the contractor is deemed to be performing a service for the Government.

In this view he submits that the contract for picking the beedi-leaves is one which comes within the definition of Section 7(d) of the Act and if so the fact that there were still some amounts due from the contractor to the Government together with the fact that no certificate as required under the rules has been given, shows that the contract is still subsisting. In support of this argument, the learned advocate refers us to the definition of forest produce under Section 2 (5) (a) and Section 32 (c) and Rule 24(1) of the Hyderabad Forest Act.

Section 2(5) (a) of the Hyderabad Forest Act (II of 1355F. as amended by Act XXIX of 1956), defines forest produce as including beedi-leaves. Section 32(c) authorises the Government to make rules for the granting of licenses to persons cutting trees of such forest and remove such trees Or timber or other forest-produce for the purpose of trade and the production or return of such licences. In exercise of the powers under this section, forest rules have been made of which Rule 24(1) is a special rule for leaves of Diospyros Melanarylon (beedi-leaves) which is as under:

'24(1). Whilst collecting leaves no branches shall be broken or lopped.

(2; The contractor may coppice trees under 9' in girth in Farwari (February) with the previous permission of the Divisional Forest Officer in writing, though the contractor shall not be entitled to the material so felled.'

In this rule there is no indication that the forest contractor is required to do anything other than to cut beedi-leaves, though he is permitted to do certain things for the purposes and prohibited from cutting or breaking or lopping any branches. Except for the mere statement that the picking of beedi-leaves is essential to preserve the forests there is nothing either in the evidence or on record to substantiate this assertion. If the Government does not give licences to pick the beedi-leaves in any forest, it is not shown how the forest is going to be injured or how the growth of the trees is going to be impeded.

We would have thought that any shedding of the beedi-leaves of for that matter, any leaves which are shed from, the trees in a forest is an ordinary function of nature giving rise to new growth. If at all, the leaves that are shed become in time leaf manure and strengthen the land. This is a natural process. If the Government allows persons to pick leaves, whether bidi-leaves or any other leaves, from trees in the forest, which are their property, it is only with a view to earning revenue and with this object it enters into contracts. A perusal of the contract entered into with the 1st respondent clearly shows that the agreement is one for the sale of forest produce.

The preamble as well as the various clauses of the agreement make that clear. Clause 1 refers to the sale of the forest produce (beedi-leaves) in the area specified in Schedule I. Clause 2 states that the forest produce sold and purchased is all the said forest produce which may now exist or may come into existence in the contract area which the forest contractor may remove from the said area in accordance with the terms of the contract during the period 9th February, 1956 to the 30th September, 1956, both days inclusive, and that it is agreed that the said forest produce may be extracted by the forest contractor only during the aforesaid period.

Clause 3 provides the time of commencement of work and the mode of working as specified in Schedule II, which states that the contractor shall commence his work before the 24th February, 1950 and shall to the satisfaction of the officer empowered to execute the contract on behalf of Government make continuous and adequate progress throughout the term of the contract. Clause 4 deals with consideration. Clause 5 specifies the routes by which the forest produce may be removed and the deposits where it shall be presented for examination.

Clause 6 deems the forest rules which are in force at the date of the agreement and as modified in Schedule V, as part of the agreement. Clause 7 provides for penalties for non-fulfilment of the terms of the agreement. Clause 8 is the provision for settlement of disputes by the Inspector-General of Forests whose decision is final. Clause 9 requires the forest contractor to file a statement in the prescribed form showing all forest produce removed by him from the said area. Clause 10 places an obligation on the forest officer to abide by the terms of the agreement and to allow the forest contractor to avail himself of all the conditions of the contract.

In Schedule I it is specified that the forest produce consists of beedi-leaves. These provisions leave no doubt that the agreement between the Government and the 1st respondent is one for sale and purchase of beedi-leaves, pure and simple. The fact that in the performance of the contract certain terms and conditions have been agreed to by both the parties, does not have the effect of converting this contract into one of the service or taking it out of the category of a pure purchase and sale of beedi-leaves.

If is not uncommon, in daily commercial transactions of purchase and sale of goods, for parties to enter into agreements whereunder One party agrees to buy and the other to sell produce or commodities which may be lying on some land or at some place from which the purchaser will have to collect it and for which purpose he is given certain facilities such as to go on the land or to place some obstacles etc. The fact that he has been permitted to do these things and has to do them in order to get at the goods sold, cannot deem him to be performing some services under the contract.

In our view, a contract of service most, in order to come within the mischief of Section 7(d) of the Act, specifically have as its object the performance of a service. In other words, it means a contract directly for the performance of services or ancillary to the performance of any such service. We are not impressed with the argument advanced by the learned advocate for the appellant, that, because in a welfare State under the Constitution there are essential and non-essential functions of a State, the sale of the beedi-leaves in discharge of these non-essential functions is with the object of obtaining a service for the preservation of the forests.

6. As the contract in question does not come within the mischief of Section 7(d), the further question of non-payment of the amount due under the contract to the Government is not relevant or significant.

7. The appellant having failed to prove corrupt practices alleged by him, an onus which rests heavily on him, the appeal is dismissed with costs. Advocate's fee Rs. 250/-.


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