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Badrivishal Pillie Vs. J.V. Narsing Rao - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberSpecial Appeal No. 1 of 1957
Reported inAIR1959AP116
ActsRepresentation of the People Act, 1951 - Sections 7, 36(2), 36(5) and 100(1); Evidence Act, 1872 - Sections 114; Partnership Act, 1932 - Sections 32; Constitution of India - Article 299
AppellantBadrivishal Pillie
RespondentJ.V. Narsing Rao
Appellant AdvocateM.K. Nambiar, Adv. for ;V.K. Vaidya, ;B.C. Jain, ;C.P. Sarathy, ;M. Ramamohan Rao and ;L.P. Saigal, Advs.
Respondent AdvocateN.S. Raghavan and ;K. Madhava Reddy, Advs.
DispositionAppeal dismissed
election - rejection of nomination - sections 7 (d), 36 (2), 36 (5), 100 (1) (c) and 114 of representation of the people act, 1951 - petition seeking declaration that election of respondent was void as appellant's nomination was improperly rejected - purpose of scrutiny of nomination is to see whether candidate suffers from any disability - in case of disqualification of candidate returning officer has power to reject nomination - it is within competence of tribunal to enquire into fresh ground of disqualification - contract of appellant with government subsisting on date of nomination - essential ingredient to constitute contract were present - returning officer was right in rejecting nomination of appellant on ground of subsisting contract. - - as the controversy turned on the.....p. chandra reddy, c.j. 1. this appeal is directed against the order of the election tribunal, hyderabad, dismissing the petition preferred by the appellant under sections 80 and 81 of the representation of people act, 1951 (hereinafter called the act), that the election of the respondent was void for the reason that the appellant's nomination was improperly rejected. seven candidates including the appellant and the respondent tiled their nomination papers for election from the begum bazar constituency to the andhra pradesh legislative assembly. ist february 1957, was appointed for the scrutiny of nominations.both the appellant and the respondent were represented by agents who were advocates at the time of the scrutiny. the agent of the respondent raised an objection to the candidature of.....

P. Chandra Reddy, C.J.

1. This appeal is directed against the order of the Election Tribunal, Hyderabad, dismissing the petition preferred by the appellant under Sections 80 and 81 of the Representation of People Act, 1951 (hereinafter called the Act), that the election of the respondent was void for the reason that the appellant's nomination was improperly rejected. Seven candidates including the appellant and the respondent tiled their nomination papers for election from the Begum Bazar constituency to the Andhra Pradesh Legislative Assembly. Ist February 1957, was appointed for the scrutiny of nominations.

Both the appellant and the respondent were represented by agents who were advocates at the time of the scrutiny. The agent of the respondent raised an objection to the candidature of the appellant on the ground that the appellant was the managing agent of the Hind Tobacco Company which had a subsisting contract with the Government and as such disqualified as contemplated by Section 7(d) of the Representation of the People Act. As the controversy turned on the question as to whether the contract was with the Union Government or with the Provincial Government and as the Returning Officer wanted to be satisfied on this issue, the appellant's agent took time till the next day for the production of the relevant contract.

On the adjourned day, some more objections were raised on behalf of the respondent, but the parties are not agreed as to the nature and scope of the objections. The returning officer upholding some of the objections laid on behalf of the respondent rejected the nomination paper of the appellant. Within the time allowed, the other candidates withdrew the nomination, thus leaving only the respondent in the field with the result that he was declared duly elected without any contest on 4-2-1957.

2. It is to challenge this election that the present petition was filed by the appellant complaining against the procedure followed by the Returning Officer permitting the respondent's agent to seek information from the representative of the appellant and adjourning the proceedings to the next day contrary to the provisions of Section 36 of the Act questioning the correctness of the statement in the order of rejection as also the legality thereof.

3. The respondent filed a written statement denying the allegations in the petitions as to what happened on the 1st and 2nd of February before the Returning Officer and stating that his representative brought to the notice of the Returning Officer that the petitioner was disqualified on the ground that he had a share or interest in several subsisting contracts for the supply of goods within the meaning of Section 7(d) of the Act and that, in fact the appellant made an admission that he, his father and brother constituted a joint undivided Hindu family owning several businesses and that the income from them went into the common pool for the benefit of all the members.

The rejoinder filed on behalf of the appellant traversed the allegation in the written statement tkat the respondent's representative raised the objection that the firms of which the appellant was a partner had subsisting contracts with the Government. The appellant also contended that it was not open to the respondent to raise grounds other than those relied on by the Returning Officer and asserted that no disqualification attached to him.

4. The Tribunal raised as many as nine issues and answered issues 1 to 5-A and 6 against the appellant and the rest in his favour in other words, the Tribunal found that the objections mentioned in clauses (a), (b), (c), (d) and (e) of paragraph 5 of the written statement were advanced before the Returning Officer and even, otherwise it was open to the respondent to raise fresh grounds before the Tribunal and the appellant had an interest in subsisting contracts which some of the concerns of which he was a member had with the Andhra Pradesh Government.

We are here not concerned with the findings of the Tribunal which are in favour of the appellant as no attempt was made to canvass them and nothing very much turns upon them. In the result, the Tribunal dismissed the petition with costs. It is this order that is impugned in this appeal.

5. Several contentions were pressed upon us by Sri M.K. Nambiar, in support of this appeal, namely:

(1) that the Returning Officer had no jurisdiction to adjourn the proceedings to the next day except for rebuttal of the objections and that, at any rate, to entertain fresh objections to the nomination of the appellant on the adjourned day;

(2) that the objections which form the basis of the order of the Tribunal were not raised before the Returning Officer on behalf of the respondent and it was not competent for the Tribunal to inquire into disqualifications not urged earlier; and

(3) that the conclusion of the Tribunal that the appellant had an interest in the subsisting contracts which Pitty Malani and Co., of which he was a partner had with the Government of Andhra Pradesh is erroneous and is not borne out by the evidence on record. We shall deal with them seriatim.

6. On the first point the debate centres round Section 36 of the Act. Sub-sections 2 and 5 of that section are material for the purpose of this inquiry and they read thus:

'(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may either on such objections or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:

(a) that the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely: articles 84, 102, 173 and 191 and Part II of this Act.


(5) The returning Officer shall hold the scrutiny on the date appointed in this behalf under Clause (b) of Section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:

Provided that in case an objection is made the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.' Indisputably it was at the instance of the appellant's representative that the matter was adjourned to the next day. That being so, it does not lie in the mouth of the appellant to call in question that act of the returning officer. There is also no substance in the plea that the respondent should not have been allowed to put forward new grounds under Sub-section 2 of Section 36 of the Act.

The Returning Officer may make objections sue motu and it is not necessary that the inquiry should be confined to the objections raised by the other contesting candidates. Further, this point loses much of its force in the view we take of the competency of the Tribunal to permit the returned candidate to urge new grounds in support of the action of the returning officer. This argument is therefore inadmissible and is rejected.

7. We will now proceed to consider the point whether the grounds which form the subject-matter of issues 3, 4, 5-A and 6 were raised before the returning officer. The argument advanced on behalf of the appellant in this respect is that the Tribunal made a wrong assumption that the returning officer who was examined as R. W. 15 has supported the case of the respondent and the record of proceedings negatives the case of the respondent in this behalf. There is considerable force in this argument. It is true R. W. 14 who represented the respondent before the returning officer had asserted that he did lay the objections before the returning officer..

It is stated in the order that the respondent's case was supported by R. Ws. 14 and 15 and that their evidence would disclose that the objections raised in the written statement referred to above were mentioned before the returning officer but that the latter did not make a note of the various companies and concerns mentioned by R. W. 14. Rut, a perusal of tile evidence of R. W. 15 does not substantiate it. On the contrary, he admitted that except in the case of Nizam Sugar Factory, Mr. Sreeramulu did not make any reference to the other concerns having subsisting contracts with State Government.

There is thus a conflict between the statement of R. W. 14 and that of R. W. 15. This to a considerable extent militates against the case of the respondent. No doubt, R. W. 14 testified to having raised these objections. But the proceedings recorded by the returning officer at the time of the scrutiny do not make any reference to the objections in this form. It is true that R. W. 14 said that the returning officer did not make a note of all the objections and that R. W. 15 himself admitted that he did not make a note of the various companies and concerns mentioned by Sreeramulu besides the six before adjourning for lunch as also the admission made by the petitioner that he is the member of the joint family because they were again assembling at 2-30 p.m.

In this regard, the comment of the counsel for the appellant was that the returning officer would not have omitted to include this objection in the proceedings, had it been laid before him especially when the proceedings reveal that they were minutely recorded and that R. W. 14 might be making a mistake is not altogether without substance. In this state of evidence, we are unable to agree with the Tribunal that the objections relating to the subsisting contracts in which the appellants had an interest and which had the effect of disqualifying him were formulated before the returning officer,

8. This opens up the question as to the jurisdiction of the Tribunal to entertain objections other than those formulated before the returning officer. The ambit and scope of the enquiry before the Tribunal has to be determined with reference to Section 100(c) and Section 7(d) of the Act. Section 100 in so far as it is relevant enacts:

'Subject to the provisions of Sub-section (2), if the Tribunal is of opinion:


(c) that any nomination has been improperly rejected. * * *

The Tribunal shall declare the election of the returned candidate to be void. Section 7 in so far as it is relevant is as follows:

'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

'(a) ......

(b) .....

(c) .....

(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 language employed in Section 36(2), namely :

'The returning officer shall ..... after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:

(a) that the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable etc., is also pertinent in this regard.

9. What is urged by the counsel for the appellant is that the inquiry before the Tribunal under Section 100(c) is restricted to the correctness and soundness of the decision of the returning officer and that the Tribunal cannot travel beyond the objections put forward before the returning officer. It is argued with great insistence that the Tribunal in considering whether the rejection of the nomination was improper or not has to consider whether the order as it stands is sustainable or not and that at any rate no fresh material can be placed before the Tribunal in support of an objection and much less fresh grounds.

The learned counsel called in aid a judgment of a Bench of the Madras High Court reported in Raja Nainar v. Velusami Thevar, AIR 1958 Mad 198 (A). We are not able to subscribe to the proposition as enunciated by the counsel for the appellant. We feel that the expression 'impropriety' is of wide import and cannot be equated to the correctness or soundness as contended for by the appellant.

If it means the same thing as correctness or soundness it would not be open to the Tribunal even to substitute tenable reasons in support of the conclusion but judge the propriety of the rejection only with reference to the reasoning of the returning officer. This restricted meaning does not find -support even in the Madras case cited by the learned counsel,

10. There, one of the candidates preferred as objection to the candidature of another. Since this objection was not cleared by the candidate, it was upheld and the nomination of that candidate was rejected. It was in an election petition filed by the said candidate challenging the validity of the returned candidate the latter pleaded that the petitioner there was disqualified on several other grounds as-well, which were not enumerated before the returning officer.

The question thus arose whether the inquiry was to be confined to the correctness or otherwise of the objections preferred before the returning, officer, The Tribunal overruled the contentions of the petitioner and dismissed an interlocutory petition filed in that behalf by him. The election petitioner moved the High Court under Article 226 of the Constitution for the issue of a writ of certiorari to set aside that order. The learned Judges, Rajagopalan and Rajagopala Iyengar JJ. that formed the Bench accepted the petition in the view that it was the objection formulated for decision in the appropriate stage of scrutiny of nomination that limited the scope of investigation both in the summary inquiry before the returning officer and at the trial before the Tribunal.

It is observed in the judgment that the jurisdiction of the Tribunal is co-extensive with that of. the returning officer and that being so, it was not permissible for the Tribunal to test the correctness of the decision of the returning officer except with reference to the objections which the returning officer had to consider, With great respect, we are unable to agree with the reasoning of the learned Judges in the cited case. We think the proceeding before the Tribunal under Sections 80 and 81 of the Act is an original one and therefore it may not be correct to posit that the jurisdiction of the Tribunal is co-extensive with and delimited by that of the returning officer which might be the case where the Tribunal is constituted an appellate tribunal.

The trial affords full opportunity to both sides, to put forward their respective cases. The learned Judges did not doubt the competence of the tribunal to permit the parties to adduce fresh material 'which a trial enables the parties to place before the tribunal'. It is incontrovertible in view of the pronouncements of the Supreme Court in Durga Shankar v. Raghuraj Singh, : [1955]1SCR267 (B) etc., that the objection made before the returning officer could be established by evidence aliunde.

The only debatable point is whether it was open to a respondent to an election petition to support the rejection only with reference to the objections laid before the returning officer. We feel that there is no warrant for importing a restriction in this behalf into the language of the relevant provisions of the Act. If it is conceded that it is open to the parties to lead fresh evidence to make out the objection raised before the returning officer it stands to reason to hold that it is permissible for the parties to formulate other objections to sustain the order of rejection.

The learned Judges observed that since the enquiry before the returning officer was a summary one and the time at his disposal very short, it may well be that neither the objector nor the candidate, the validity of whose nomination has been challenged can place the material available to them to sustain or rebut the objection. If this much is conceded, we fail to see how the objectors would he prevented from sustaining the order on fresh grounds. The same reason will hold good even in regard to new grounds of objection as we are unable to discover any Distinction in principle between the two.

11. Supposing one of the candidates objects to the nomination of another candidate on the ground of disqualification as contemplated under Section 7(d) and that objection finds favour with the returning officer still is an obligation cast on him to entertain all objections and to give a decision with reference to each of them? The learned counsel for the appellant invites us to answer it in the affirmative as according to him this conclusion is inescapable having regard to the provisions of Section 36 of the Act which require the returning officer to examine the nomination papers and to decide all objections which may be made to any nomination and to the decision of the Supreme Court in : [1955]1SCR267 (B).

We do not think we can derive much assistance from the Supreme Court judgment. One of the problems that was to be solved by their Lordships of the Supreme Court was whether acceptance of a nomination paper could be said to be improper when no one objected to the nomination and when the want of qualification was not apparent on the electoral roll itself or on the face of the nomination. It was decided that such an acceptance was not an improper one.

That ruling cannot govern the present case. The situation where a candidate was disqualified on an objection raised by one of the opposing candidates is different from the one envisaged in the Supreme Court judgment. The case of sustaining of an order on material or grounds other than those relied on by the order impugned is not the same as that of seeking to reverse mat order on different material or objections.

Further, the rejection of a nomination papercannot be deemed to be improper if actually theperson concerned was disqualified for one reasonor other notwithstanding that the reasons adducedby the returning officer are unsound or that thematerial placed in support of any particular objection or the grounds of objection do not support rejection. It is not the order rejecting the nomination that was the subject of review before the Tribunal. What the Tribunal has to consider is whether the rejection was improper in other words, whether it could be justified.

We find great difficulty in acceding to the proposition that although in fact a candidate is disqualified from being nominated, yet the rejection should he described as improper on any of the grounds enumerated above. Let us take a case where several objections are raised before the returning officer, but he refers only to one objection which, in his opinion, has substance and gives a finding on the basis of it and does not make any reference to other objections or a case where one candidate makes certain objections to the nomination of another candidate which find acceptance with the returning officer.

Is it obligatory for the other candidates to come forward with their objections also on peril of being precluded from putting forward their objections if it becomes necessary, when an inquiry is started before the election tribunal under Ss. 80 and 81 of the Act? Our answer is in the negative. The returning officer has to decide all objections only before he accepts the nomination of a candidate.

That is because he cannot decide whether a candidate is qualified or not before considering nil the objections. That is the only effect of Section 36 nf the Act. The language of the section does not compel the conclusion the appellant wants us to reach. Further assuming such a duty exists that does not determine the ambit of the power of the Tribunal.

12. It should be remembered that the purpose of scrutiny is to see whether a candidate suffers from any disability or disqualification or is disqualified to stand for election. If a candidate is not qualified the returning officer has no alternative except to reject his nomination. If one objection is sufficient to decide the issue concerning the disqualification, it is not incumbent on him to go into other grounds. The returning officer is directed by Sub-section 2 of Section 36 to reject the nomination of the candidate who is disqualified for being chosen to fill the seat. So, the dominant consideration in the determination of the question whether the rejection was proper or improper is whether the candidate was disqualified from being chosen to fill the seat.

That being the criterion, the rejection of a candidate who is actually disqualified to fill a seat could not be treated as improper, merely because proper grounds could not be taken before the returning officer, if the disqualifications could be established and if the rejection could be justified on other grounds or on other material. Then once a ground is taken that a candidate is disqualified, it would be permissible to urge additional grounds as may be available before the Tribunal when the question of disqualification or otherwise of the candidate comes up for further scrutiny, since a returned candidate is merely seeking to support the election.

13. Moreover, the election proceedings are not merely a matter between the two contending parties but the public also have an interest in it and they concern the purity of public life. It was remarked by Wright, J. in Harforcl v. Linskey, (1899) 1 QB 852 at p. 860 (C), that 'an election petition is not simply a matter between the parties but is a public concern'. That being so, the Tribunal is under a duty not to ignore any allegations hearing on the disqualifications of a candidate. In this context the remarks of the Supreme Court in Bhikaji Keshao v. Brijlal Nandlal, : [1955]2SCR428 (D), are apposite : --

'It is not in the interest of purity of elections that such allegations of disqualification should be completely ignored without enquiry and it appears rather surprising that the Tribunal should have ignored them and exercised its power to dismiss the petition.'

It is true that that was a case where the election of a successful candidate was impeached on the ground of improper acceptance of his nomination and the petition was dismissed on preliminary objections without investigating into the truth or otherwise of the allegations. However, this passage throws some light on the scope and range of enquiry before the Tribunal. For all these reasons, we consider that it is the duty of the Election Tribunal to enquire into allegations even if they are fresh allegations as to whether there is any real disqualification arising out of such grounds.

There is support for our view in Tej Singh v. Election Tribunal, Jaipur, (E). In repelling the contention that objections advanced by the returned candidate before the Tribunal other than those put forward before the returning officer should not be investigated at the trial, the learned Judges relied on the provisions of Section 36(2) of the Act and proceeded to remark : --

'The nomination paper is thus liable to be rejected on anv one or more of the five grounds, and this can be done either on objection or sun motu by the Returning Officer. It is conceivable that there may exist more than one defect, but the Returning Officer may consider the objection to be justified on only one of the objections and may refuse the nomination on that ground alone. But the candidate who wishes to call in question the election which may be held subsequently on the ground that his nomination paper was improperly rejected has to aver his due nomination as a candidate, and that allegation involves an averment that the nomination paper did not suffer from any of the defects mentioned in Clauses (c) to (e) of Sub-section (2) of Section 36.

It is only when such candidate can prove that he had been duly nominated that the Election Tribunal can come to the finding that his nomination paper had been improperly rejected. In our opinion, there, the respondent to an election petition is entitled to raise a plea that the nomination paper, though rejected on one ground by the Returning Officer, was defective on one or more of the other grounds mentioned in Section 36(2), and such plea, if taken, has to be enquired into by the Election Tribunal.'

It follows that it is well within the competence of the Tribunal to enquire into fresh grounds of disqualification that fall within the purview of Section 7(d) of the Act.

14. This leads us to the question whether the appellant had an interest in a subsisting contract with the Government so as to attract the applicability of Section 7(d) of the Act. The three concerns in which the appellant had an interest and which are said to have entered into contracts with the Government are the Fine Hosiery Mills Ltd., Pearl Surgical and Dressing Works, and the Commercial Printing Press, Begum Bazar.

15. To deal first with the Fine Hosiery Mills Ltd., the appellant is said to have had an interest in it by reason of his being a partner of M/s. Pittie Mallani and Co., Managing Agents of the Company.

The case of the respondents in this regard is that the appellant was a partner of M/s. Pittie Mallani and Co., throughout the relevant lime and that the Fine Hosiery Mills Ltd., had a subsisting contract with the State Government at the material time. The position taken by the appellant on the other hand is that he ceased to be a partner of the firm in question long before the date of nomination and that even otherwise it did not operate to disqualify him since there was no contract which was alive at the date of nomination between the company and the Government.

16. Indisputably, the appellant was one of the partners of Pittie Mallani and Co., and this partnership acted as the managing agent of Fine Hosiery Mills Ltd., and the mills had entered into contracts with the State Government for the supply of some cotton jerseys as evidenced by Exs. R-22, R-27, R-40 and R-41 and that a sum of Rs. 175 still remained unpaid by the date of nomination.

But the dispute is as to whether the appellant has severed his connection with the concern mentioned supra and whether the contract became terminated. It is the case for the appellant that he resigned from the partnership by writing letter Ex. P. 29 on 18-1-1957 to the concern and that he also retired from the directorship of the company which position he held by virtue of being a partner of Messrs. Pittie Mallani and Co., as seen from Exs. P-9 and P-10.

17. The point that falls to be decided is whether these letters were written on the dates they purport to bear or whether they came into existence subsequently. So far as Ex. P-29 is concerned, we will presently show, even if it is assumed to have been written on 18-1-1957 that does not dispose of the matter, since it his to be further established that the resignation was accepted by the other partners before the date of nomination as a partner cannot retire from partnership by a unilateral action unless the partnership is one at will. A partnership except when it is at will can only be dissolved by mutual consent. (See Section 32 of the Partnership Act).

18. We shall first examine the relevant documents and the surrounding circumstances bearing on the factum of resignation from the partnership. As already stated, the document relied on in support of the appellant's case in this context is Ex. P-29 which is in these words :

'I do hereby rotire from the partnership of the firm of M/s. Fitly Mallani and Co.

I further declare and affirm that I retire and relinquish my partnership of the firm and I or my heir or successors shall not have any right of whatsoever nature on this firm and it's business.

Please acknowledge receipt.'

It is only P. W. (5 that speaks to the existence of Ex. P-29. This document is only a copy and no attempt was made to have the alleged original of it produced. Except the ipse dixit of the appellant who deposed that he sent a copy of Ex. P-29 to Pittie Mallani and Co., (which may perhaps be a mistake for the original of Ex. P-29), there is nothing to substantiate his case. Significantly enough, even P. W. 9 the power of attorney holder of M/s. Pittie Mallani and Co., does not testify to having received such a letter.

There is no acknowledgment of the receipt of this letter in spite of the recital in Ex. P-29 'Please acknowledge receipt.' It has also to be borne in mind that at the time of the alleged retirement only the appellant and his brother were partners of Pittie Mallani and Co., and his brother was mostly living in Bombay find doing business there while the Fine Hosiery Mills are boated in Hvderabad. In that position it is hardly likely that the appellant had relinquished his interest in the concern and that his brother took it over exclusively.

19. On the same day, he is said to have intimated to the Fine Hosiery Mills Ltd., about his retirement by EXS. P-9 and P-10. P. W. 1 seeks to support the petitioner in regard to this matter. It is the further case of the appellant that a resolution was passed accepting the resignation pursuant to these two letters.

But, there are certain arresting features about those documents which countenance the contention of the respondent that these letters were prepared long after 18-1-1955 the day on which they purport to have been written, so that the date of serverace of partnership of M/s. Pittie Malland and Co., may relate hack to a date prior to that nomination. The meeting fixed for 18-3-1957 at which the resolutions in question were passed were originally fixed for 19-2-1957 as appears from Ex. Rule 81, Curiously enough, there was no reference to this subject in the agenda fixed for that meeting.

That meeting was adjourned for want of quorum. This significant omission is sought to be explained away by P. W. 1 saying that this was not included ns a subject of the agenda as it was thought that it would be brought in at the time of the meeting under the heading 'any other item which may be brought up with the permission of the Chairman'. We find it difficult to accept tills explanation. The subject does not find a place in the main agenda even for the adjourned meeting but ' was in the additional agenda.

It is also evident from the deposition of P. W. 7 the Director of Commerce and Industries, Andhra Pradesh Government, and also a Director of the company representing the Government that these letters were not placed before the Board of Directors and he did not also remember whether there was any reference to the date or whether it was to be accepted retrospectively.

The absence of reference to these letters in the preamble of the resolution bears out the statement of P. W. 7. On earlier occasions when other Directors retired there was a reference made to their retirement. It is ununderstandable why there was this omission in the present case if really these letters were in existence at that time. Admittedly, no acknowledgment was sent though it was sent through bearer. This matter was discussed at great length by the Tribunal and it is not necessary for us to cover the same ground. We are in agreement with the conclusions as regards these documents. It is highly doubtful whether Exs. P-9 and P-10 were existent at the time of the nomination.

20. Even if a resolution was passed pursuant to the letters, it would not help the appellant since the resignation can take effect only after it was acceped by the company. The resolution by giving retrospective operation to the retirement from 18-1-11956 would not help the appellant because this would not relate back to the date of the letter so as to remove the disqualification, vide Gloucester Municipal Election Petition, 1900; Re. Ford v. Newth, (1901) 1 KB 683 (F).

Aside that, the resignation of the directorship of the company would not carry the appellant very far. The directorship of a company is not by itself a disqualification unless it be one envisaged in Section 8(e) of the Act. It is not urged by the other side that the said office is one of profit operating as a defect within the scope of Section 7(e). He is said to have been barred under Section 7(d). However, we dealt with this matter at some length as elaborate arguments were addressed before us and as it was dealt with by the tribunal.

21. Now coming back to Ex. P. 29 on the material on record, the conclusion is inevitable that it was brought into existence some time after the filing of the election petition in order to buttress the appellant's case that he had retired from the concern before the date of nomination.

22. Assuming that the original of Ex. P-29 was despatched on 18-1-57, there is no knowing whether it had reached the addressee. Our attention is not drawn to any document to prove that Lakshmilal had received this letter. That apart, under Section 32 of the Indian Partnership Act a partner could retire only with the consent of all partners or in accordance with the express agreement of the parties or where the partnership is at Will, by giving notice to all other partners of his intention to retire.

The terms of the instrument of partnership in the instant case make it abundantly clear that the partnership was not one at will. Even otherwise, Clause (c) requires that there should be a notice in writing which involves the idea that the notice should reach the other partners. Thus, Ex. P-29 does not serve any useful purpose to the appellant on the question whether the appellant had resigned from partnership.

22-a. This leads us to the point whether the contract was subsisting at the date of nomination. It is not disputed that a sum of Rs. 175/- was stilt due from the Government as is plain from Ex. R-24 dated 11-12-1956 by and under which the manager requested the Inspector-General of Police to arrange for payment to the mills of the amounts outstanding.

The appellant seeks to get over this difficulty by maintaining that this amount was subsequently given up. But, it is not stated when exactly this was waived. That aside, there is nothing on record to prove that in fact this was given up at all.

No entry has been made to that effect in the account books. It cannot also be overlooked that in reply to Ex. R-24 the Government have not repudiated their liability to pay the balance of the amount claimed by the mills. It is important to note that there has been no resolution passed by the Board of Directors waiving this amount nor any order from a competent authority to that effect. In the absence of any material to establish the plea that nothing remained unpaid this contention cannot prevail. A contract is alive so long as the goods supplied are not paid for. By reason of this contract, the appellant had incurred a disqualification.

22-b. Though this is sufficient to dispose of the appeal, we will now turn to the second head of disqualification, since arguments were addressed by both sides at some length relating to Pearl Surgical and Dressing Works. It is not in dispute that the Pearl Surgical and Dressing Works belong to the partnership known as Raja Bahadur Bansilal and Sons of which the petitioner, his brother Lakshmilal and father were partners. But the appellant's case is that he severed his connection from these concerns with effect from 1-11-1956.

On this part of the case, reliance is placed for the appellant on the account-books of Raja Bahadur Bansilal and Sons as also on those of Pearl Surgical and Dressing Works Etc., and on a letter, Ex. P-39, alleged to have been written on 15-12-1956 by P.W. 9 informing the Central Bank of India Ltd., that the Pearl Surgical and Dressing Works had become the sole proprietary concern of Lakshmilal Pannalal Pittie.

(After discussion of evidence the judgment proceeded). The various circumstances adverted to above are explicable only on the hypothesis that the documents relied on by the appellant were brought into service long after the filing of the nomination in order to obviate the difficulties created by Section 7(d) of the Act. It is unnecessary to dilate any further on this topic as it has received considerable attention at the hands of the Tribunal.

23. We will now deal with the controversy as to whether there was a contract between the Pearl Surgical and Dressing Works and the Government within the mischief of Section 7(d) of the Act. The point sought to he made was that there was no contract within the scope of that section as it was only a casual supply of goods and that secondly, that the Assistant Director of Medical Services who placed the order was not competent to enter into contracts on behalf of the Government and consequently the appellant could not be said to have suffered any defect in that regard and it is only a contract that is in conformity with the provisions of Article 299 of the Constitution that would operate as a bar.

24. As regards the latter part of the argument it is important to note that the capacity of the Assistant Director to contract was not challenged at any time. Both sides acted in the belief and on the assumption that he was authorised to do so. Further, the officer concerned who was examined as R. W. 6 was not questioned about his authority to place the order for the goods, nor does it seem to have been put in issue before the Tribunal. Even otherwise, we do not think that it ceases to be a contract. Article, 299 of the Constitution was not enacted as a matter of mere form but was put in only to safeguard the Government against unauthorised acts. It may be that they could not be enforced against the Government. But, it could not be regarded as a void contract. In this context, the remarks of the Supreme Court in Chaturbhuj Vithaldas v. Moreshwar Parashram, : [1954]1SCR817 (G), are relevant:

'It would, in our opinion, be disastrous to hold that the hundreds of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency cannot contract orally or through correspondence and that every petty contract must be effected by a ponderous legal document couched in a particular form.

It may be that Government will not be bound by the contract in that case, but that is very different thing from saying that the contracts as such are void and of no effect. It only means that the principal cannot be sued; but we take it there would be nothing to prevent ratification, especially if that was for the benefit of Government. There is authority for the view that when a Government officer acts in excess of authority, Government is bound if it ratifies the excess.'

It cannot be overlooked that the principle underlying Section 7(d) of the Act was obviously to prevent a conflict between interest and duty that might inevitably arise. This rule is embodied in a passage in the judgment of Bose J., in Chaturbhuj Vithaldas v. Moreshwar Parashram (G) (supra):

'The purpose of the Act is to maintain the purity of the legislatures and to avoid a conflict between duty and interest. It is obvious that the temptation to place interest before duty is just as great when there is likely to be some difficulty in recovering the money from Government (for example, if Government were to choose not to ratify the contracts) as when there is none.'

In the instant case, there is no dispute that the goods were required for Government purposes. There is no substance in the contention regarding the lack of authority of the Assistant Medical Director to contract with the aforementioned company.

25. The next point is whether the order in question would amount to a contract within the meaning of Section 7(d) of the Act. What is urged by Sri Nambiar is that it is only executory contracts that fall under Section 7(d) of the Act and the section cannot apply to a transaction like the present one which can only be described as an outright sale. We do not think we can give effect to this.

26. What appears from the evidence is that the Pearl Surgical and Dressing Works submitted a tender for the supply of requirements of the Government consisting of lint and bandages and this was accepted by the Government in respect of which supplies were being made from time to time. It is pursuant to this tender that orders were being placed by the officers of Government, and Ex. Rule 28 dated 10-12-1956 seems to be of that nature.

The reference to approved rates in Ex. R-28 shows that an offer was made by the Government to buy the goods at the rates approved by the Government which constitutes an offer, and this was accepted by the firm, and when the goods were sent as per that letter the offer was accepted by the Government. Thus, the essential ingredients to constitute a contract are present in the case. As soon as an order is placed and accepted, a contract arises. See : [1954]1SCR817 (G).

27. We think that Satyendra Kumar v. Municipal Commissioners, Dacca, AIR 1931 Cal 288 (H), supplies authority for this position. There, an order was placed for the supply of road material to the Municipality with the plaintiff and the supplies were made. Bills for the price of goods were duly passed by the Chairman of the Municipality, but on account of some financial difficulty payment of the bills was not made in full and some money was remaining due to the plaintiff's.

The question arose whether this would disqualify the plaintiff under Section 57 of the Bengal Municipal Act. It was contended on behalf of the plaintiff that when he had performed his part of the contract with the municipality by supplying goods and the bills were passed, the contract had come to an end. This contention was overruled by Costello J., who spoke for the Court on the ground that so long at the goods were not paid for, the contract must be regarded to be subsisting, resulting in his disqualification. It follows that a disqualification attaches to the appellant even on this ground.

28. We are now left with the ground of disqualification in relation to the Commercial Printing Press of which the appellant was admittedly the proprietor at the relevant time. The only question which requires determination is whether on the relevant date the press had any contract outstanding with the State Government by reason of its printing milk coupon books in respect of which a sum of Rs. 175 was outstanding and also, publishing some books in regard to which royalty was to be paid by the press to the Government.

29. The Superintendent of the cattle dairy farm placed an order with the Commercial Printing Press for the supply of these books. Although the books were supplied as required, the charges were not paid till after the date of nomination. Here again, it was maintained that the officer concerned had no capacity to enter into a valid contract. The considerations that pertain to the contract with the Pearl Surgical and Dressing Works are also appropriate here and they need not be repeated. It is enough to say that the contract fulfilled the requirements of a contract envisaged in Section 7(d) of the Act.

30. The main argument advanced in this regard was that Section 7(d) of the Act would not come into play in the case of mere printing of coupon books. It is not necessary for us to consider whether printing of books alone without anything more, the paper having been procurer! by the customer would come within the mischief of the expression 'supply of goods.' No foundation has been laid for this contention. The appellant did not make any attempt in this respect even when the concerned officers were in the witness-box.

Every one seems to have proceeded on the assumption that it was the coupon books as such that were supplied. There was no suggestion that the paper and other material were supplied by the Dairy farm and what was expected of the Press was mere printing. Apart from them, the contents of Exs. Rule 8 (a), Rule 8 (b), Rule 10 would reveal that the sum stipulated to be paid covers not only labour charges for printing but the cost of paper as well.

It cannot be ignored that the matter to be printed is very little and it is hardly likely that a sum of Rs. 175/- would have been agreed to be paid for it. Moreover, the deposition of R. W. 4 i. e., the Dairy Farm Supervisor namely that delivery was given within a fortnight, indicates that the bill for Rs. 175/- was a consolidated one for the supply of printed coupon books. There can be title doubt that it must have included the cost of paper as well.

31. The learned counsel for the appellant contended alternatively that even if the printed books were supplied it would not amount to a contract for supply of goods hut would only be a contract for work and labour, and placed reliance on Robinson v. Graves, (1935) 1 KB 579 (I). We do not think that that ruling is in point and it does not afford any assistance to us. There, the defendant orally commissioned the plaintiff an artist to paint the portrait of a lady agreeing to pay 250 guineas therefor, but before the completion of the portrait he repudiated the contract. The artist laid an action for the recovery, of the agreed price of the portrait.

One of the questions raised there was whether the plaintiff could sustain the action for recovery of the price without any note or memorandum in writing of the contract. It was held by the Court of appeal that it was not a contract for sale of goods as the substance of the contract was that skill and labour should be exercised upon the production of the portrait and that the paint and canvas were merely ancillary to the contract and consequently it was only a contract of work and labour which did not require any memorandum in writing of the contract. In support of his opinion, Greer L.J., extracted the following passage which states the rule succinctly from the judgment of Pollock C.B. in Clay v. Yates, (1856) 25 LJ Ex 237 (J)-

'My impression is, that in the case of a work of art, whether in gold, silver, marble or plaster, where the application of skill and labour is of the highest description, and the material is of no importance as compared with the labour, the price may be recovered as work, labour and materials.'

The ratio decidendi of that case cannot govern the present case where the material to be supplied is the most important clement of the contract and the cost of labour is very insignificant. (1856) 25 LJ Ex 237 (J), referred to above is analogous to (1935) 1 KB 579 (I). It related to a contract of printing and delivery of a book to a customer who desired to have it printed.

32. We think that the case on hand is more akin to Dominion Press Ltd. v. Minister of Customs and Excise, 1928 AC 340 (K). In that case, the business of the printer consisted in printing to the order of individual customers stationery of a business character, the customer explaining exactly what goods he required and the printer furnishing She goods at a fixed price. It was decided by the Privy Council that these transactions were sales and deliveries.

33. In Mahendra Kumar v. Vidyavati, : AIR1956SC315 (L), the Supreme Court proceeded on the assumption that a contract for printing electoral rolls would come within the ambit of Section 7(d) of the Act.

34. For these reasons we hold that the contract For supply of printed coupon hooks falls within the operation of Section 7(d) of the Act.

34a. It was lastly urged by the counsel for the appellant that this was not specifically pleaded in the written statement and therefore should not form the basis of any decision as against the appellant. We think this is an unsubstantial argument having regard to the fact that the concerned issue as framed is couched in wide language, it being 'whether the Commercial Printing Press, Begum Bazar, had any subsisting contract with the appropriate Government on the relevant date.'

Further the parties have gone to trial with the full knowledge that the question of contract for the supply of printed milk coupons was in issue and had opportunities to lead evidence on this topic (as appears from the recorded proceedings) and the matter has been fully gone into by the Tribunal. So, the absence of a specific pleading has not resulted in any prejudice to the appellant. Consequently, this submission should also be rejected. It follows that this contract also has resulted in disqualifying the appellant.

35. What emerges from the above discussion is that the appellant was disqualified to be chosen a member of the Legislative Assembly within the meaning of Sections 7 and 36 of the Act. That being so, it could not be premised that his nomination was improperly rejected. In these circumstances, we must uphold the decision of the Tribunal and dismiss the appeal with costs. Advocate's fee is fixed at Rs. 250/-.

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