S.K. Ray, J.
1. The Last general election to the Orissa Legislative Assembly was held in the month of February, 1974 pursuant to a notification calling upon all Assembly Constituencies in the State of Orissa to elect members to the said Assembly. In the notification a period between 22nd to 29th of January, 1974 was fixed for filing of nomination papers. The date for scrutiny of nomination papers was specified to be held on 30-1-74. Polling for the election took place on 26-2-74 and the result was declared on 28-2-74.
2. Bhadrak Assembly constituency is a single member general constituency. From this constituency four nomination papers were duly filed in favour of the petitioner. The respondent also was nominated as a candidate for election from this constituency and nomination papers were duly presented on his behalf. At the time of scrutiny an objection was raised at the instance of one Balaram Sahu before the Returning Officer that the petitioner was disqualified for being chosen as a member of the Orissa Legislative Assembly as there subsisted contracts entered into by him with the Government of Orissa for execution of works under-taken by that Government under Section 9A of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act') Some certificate cases were produced before the Returning Officer which had been filed by the Block Development Officer, Bhadrak and the Sub-divisional Officer, Bhadrak against the petitioner for realisation of amounts which were alleged to be the amounts due under a contract entered into by the petitioner with the Government of Orissa for execution of works undertaken by the latter. Though those certificate cases did not relate to any contract or contracts as envisaged under Section 9A of the Act, nevertheless, the Returning Officer held the petitioner to be disqualified under the said section and rejected his nomination papers.
3. Records of two certificate cases were produced before the Returning Officer. One related to Certificate Case No. 15/Misc. of 1968-69 and the other related to Certificate Case No. 33/P. of 1962-63. The Certificate Case No. 15/Misc. of 1968-69 was a demand under Section 121 (2) (a) of the Gram Panchayat Act in respect of dues under four alleged contracts. The Certificate Case No. 33/P. of 1962-63 related to an amount paid by the Block Development Officer, Bhadrak to Rahanj Gram Panchayat from the funds of Bhadrak Panchayat Samiti. The petitioner was then the Sarpanch of Rahanj Gram Panchayat under the Bhadrak Panchayat Samiti. The respondent in his written statement gave some instances of contract besides those referred to by the Returning Officer. Again, during trial, he amended his written statement by incorporating nine further instances of subsisting contracts between the petitioner and the State Government.
Objection to this amendment was raised by the petitioner on the ground that the enquiry by the Tribunal must be confined to only those matters as to disqualification which were raised, before the Returning Officer and the field of enquiry cannot be enlarged by adducing evidence of further instances of subsisting contracts. This was overruled on the basis of a Supreme Court decision rendered in the case of Veluswami Thevar v. Raja Nainar, AIR 1959 SC 422, where it was held that the enquiry before the Tribunal is not restricted to the material placed before the Returning Officer and that all evidence bearing on that ground can be adduced before the Tribunal. The proceeding before the Tribunal being of the nature of an original proceeding as contrasted with a proceeding by way of an appeal, it is open to a party to put forward all other grounds of disqualification against the petitioner and not be restricted to one ground of disqualification raised before the Returning Officer. Thus, it appears that a party cannot only place more materials than those placed before the Returning Officer relating to the same ground of disqualification but also can raise other grounds of disqualification than the one raised before the Returning Officer.
4. On 12-4-74 the petitioner presented his election petition under Sections 80 to 83 and Section 100 of the Act denying existence of any disqualification under Section 9A thereof. The respondent filed his written statement on 28-8-74 in which he pleaded, inter alia, that (a) the election petition was not accompanied by any copy attested to be true copy under the signature of the petitioner for which the petition was liable to be dismissed and that such a copy had not been served on him; (b) the nomination papers filed on behalf of the petitioner were not in accordance with rules and, accordingly, were invalid; and (c) the petitioner was disqualified under Section 9A of the Act not only on account of the subsisting contracts covered by the 3 certificate cases, namely, No. 33/P of 1962-63, No. 15/Misc. of 1968-69 and No. 26/Misc. of 1965-66, but also by nine other subsisting contracts, instances of which were subsequently furnished by way of amendment.
5. The following issues were framed:--
1. Is the election petition liable to be dismissed, for non-compliance of Sections 81, 82 and 83 of the Act?
2. Whether the nomination papers filed by the petitioner were in substantial compliance of Sections 33 and 34 of the Act?
3. Was the petitioner disqualified under Section 9A of the Act having subsisting contracts with the Government of Orissa in course of his trade or business for execution of work undertaken by the Government on the date of filing of the nomination papers?
The parties adduced evidence on these issues. Issue No. 3
6. The third issue being the most essential issue in the case, is taken upfirst.
7. Section 9A of the Act provides as follows:--
'9A. Disqualification for Government contracts, 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 part of the contract either wholly or in part.'
To invoke Section 9A of the Act against the petitioner the following ingredients (excluding ingredients not applicable in the present case) must be established conclusively, namely:--
(a) There must be a contract betweenthe petitioner and State of Orissa;
(b) Such contract must be for execution of any works undertaken by Government of Orissa;
(c) Such contract must have been entered into with the petitioner in course of his trade or business; and
(d) Such contract must be subsisting on the date the petitioner filed his nomination paper.
Though the right of a person to stand for an election is a valuable right, he is disqualified from exercising such right if he holds a contract with the Government, because it is the essence of the law of election that the candidates must be free to perform their duties without any personal motive being attributed to them and the subsisting contract raises the possibility that such a person after his successful election may get concession for himself in the performance of his contract. This legislative intent in enacting Section 9A has to be kept in view in considering if the provisions of that section would apply to the facts of the present case. There is another principle which has also to be kept in mind. Where a written contract by a person with the Government is not enforceable by a suit in a court of law by reason of the formal defect of the same having not been executed in accordance with Article 299 of the Constitution, nevertheless, the same would opezate as a disqualification under the section, because there is always a possibility of the Government subsequently ratifying the same specially When such a contract is for the benefit of the Government (see the case of Abdul Rahiman Khan v. Sadasiva Tripathi, AIR 1969 SC 302). Again it has been laid down in the same case that if a contract which at one stage was unenforceable by reason of formal defect is subsequently ratified by the Government and the parties treat the relation between them as contractual, it will operate as disqualification.
Where a person who is a Chairman of a Company which has a personality of its own distinct from the individual personality of the Chairman, stands for an election, he will not incur disqualification by reason of the fact that the company, as such, has entered into a contract with the Government. There are two Supreme Court cases which have taken this view. In the case of Mangilal v. Krishnaji Rao Pawar, AIR 1971 SC 1943, the Supreme Court dealing with Section 9A of the Act has laid down:--
'....., It is clear that this section only covers contracts which have been entered into by a person in the course of his trade or business with the appropriate Government for the supply of goods to or for the execution or any works undertaken by that Government......... But, in our opinion, the contract of supply of electricity by the Electric Supply Co. can by no means be considered to be a contract entered into by respondent No. 1 in the course of his trade or business by reason merely of the fact that he was at the relevant time Chairman of the Board of Directors of the Company. It is not possible to describe the business of the Company to be the trade or business of the Chairman of the Board of Directors. A Company registered under the Indian Companies Act, it is settled beyond dispute, is a separate entity distinct from its shareholders. The Chairman of the Board of Directors of the Company while functioning as such cannot be said to be engaged in his trade or business as contemplated by Section 9A of the Act. The legal position is so clear that the appellant's learned counsel after an unsuccessful attempt to persuade us to the contrary view, felt constrained not to pursue this point seriously.'
In another case (Shivamurthy Swami v. Agadi Sanganna Andanappa, 1971 (3) SCC 870 at p, 876) the Supreme Court was dealing with a charge of disqualification levied against the Chairman of a Cooperative Society on the ground of subsisting contract between such Society and the Government. Their Lordships said that the contract existing between Society and the Government does not disqualify a Chairman from being a candidate because the Society has a personality of its own distinct from that of the Chairman and receipt of honorarium by the Chairman does not make him a partner. This Court as well as the Supreme Court have held that where Government Block works were entrusted to Gram Panchayat and were undertaken by the contractor not in his own name but in his capacity as a Naib Sarpanch representing the Gram Panchayat, Section 9A of the Act cannot be invoked against him (see the cases of Bhagwan Singh v. Rameshwar Prasad Shastri, AIR 1959 SC 876, and Lokanath v. Birendra Kumar, AIR 1973 Orissa 60)
It has also to be borne in mind that in cases, like the present one, where the successful candidate resists the election petition on the ground of disqualification having been incurred by the petitioner under Section 9A of the Act, the burden is on him to prove this disqualification. By merely proving that the petitioner had at some time in the past entered into a contract to execute works, the burden is not discharged and it has further to be established that the contract was subsisting on the crucial date, and where, as in the present case, there is silence on behalf of both parties to some alleged contract, as to its execution, it would be evidence of acquiescence in the abandonment of the contract and such, contract cannot be held to be a subsisting contract.
8. Keeping the aforesaid principles and the ingredients of Section 9A of the Act in mind, it has to be judged if the petitioner has incurred disqualification under the said section.
The respondent has given evidence of a number of instances of such contracts which are said to be subsisting on the date of filing of the nomination papers. Mr. Mohanty, the learned counsel for the respondent, has confined this issue to the following fifteen contracts, which are:--
(1) Repair of primary school (Erei School),
(2) Construction of culvert on Charampa-Sabrang Road,
(3) Improvement of Kodbaruan L. P. School,
(4) Advance made for procurement of paddy,
(5) Rahanj Grain Gola,
(6) Construction of Grain Goia at Asura,
(7) Purchase of paddy under Grain Gola Scheme,
(8) Wooden culvert at Jamujhadi-Khirkona Road,
(9) R. C. Decking culvert on Jamu-jhadi-Khirkona Road,
(10) Extension to R. C. B. L. M. E. School,
(11) Improvement of Pagada M I.P.,
(12) Improvement of Bania L. P. School,
(13) Improvement of Chandigaon M. E. School,
(14) Excavation of a new tank in fodder firm at Kodbaruan, and
(15) Construction of M. E. School hostel building for girls at Chandigaon.
Except one contract, which is for purchase of paddy under Grain Gola Scheme, the others are contracts of construction of buildings, culverts and excavation of tank. Of them, two written contracts are forthcoming-- one in respect of construction of wooden culvert on Jamujhadi-Khirkona Road and the other in respect of construction of R. C. decking culvert on Jamujhadi-Khirkona Road. Both these contracts are F-2 contracts. In respect of the remaining contract works there is no written agreement.
9. The petitioner's plea is that he executed the aforesaid projects in the capacity as the Sarpanch of Rahanj Gram Panchayat and that he had not entered into any contract with the Government of Orissa for execution of the works. There was, therefore, no contract between him and the Government of Orissa as envisaged under Section 9A of the Act. It is further urged that these projects were not undertaken by the Government of Orissa for execution of which he is alleged to have entered into contract with it. In view of this plea, it is necessary to recapitulate the background of the scheme in pursuance of which the aforesaid works were undertaken by the petitioner for execution. The background scheme has been stated in the case of Lokanath Pradhan v. Birendra Kumar Sahu, AIR 1973 Orissa 60, in the following words:--
'After India became independent, for all-round development of the country five-year plans were undertaken. During the Second Five-Year Plan which began after March 1956, National Extension Service Blocks were extended throughout the country with a view to enlisting participation of the people in the planning and executing of rural schemes of planned development. Development of Panchayats as institutions actively responsible for village development was one of the items approved for implementation. It was during the Second Five-Year Plan period that a block was established at Gaisilet in the district of Sambalpur some time in 1958.
A gram panchayat was also in the existence in the area constituted under the Orissa Gram Panchayats Act (15 of 1948) by then. The principle of decentralised administration and development of Panchayati Raj led to passing of the Orissa Panchayat Samiti and Zilla Parishad Act (7 of 1960). At the district level the Zill-Parishad, at the Block level the Panchayat Samiti and as the primary unit the Gram Panchayat were intended to be in charge of rural administration and development. Accordingly, a three-tier system was introduced. The Gram Panchayat, the Panchayat Samiti and the Zilla Parishad were intended to function from the village level to the district level within their defined assignment.........'
The Supreme Court in the case of Bhagwan Singh v. Rameswar Prasad Shastri, AIR 1959 SC 876, speaks of this scheme in the following words:--
'...... The Second Five-Year Plan published by the Planning Commission in 1956 shows that the programme of starting these works was treated as a part of the co-operative movement and the Commission had therefore recommended that the States were to sponsor and assist actively in the organisation and development of Village Panchayats which was an important constituent of the programme of fostering corporate life in the rural areas as it would promote among the rural community active interest in the development programmes of the villages. The object of this programme which 'would operate in areas not yet reached by the National Extension Service was to enable village communities to undertake works of local benefit mainly with their own labour. The Commission realised that the resources of all the States taken together would fall far short of the requirements of this Plan and so it recommended large transfers of resources from the Centre to the States. In this connection the conclusion of the Commission was that out of Rs. 200 crores sanction for the year 1957-58, 12 crores would be required for the Centre for schemes undertaken or directly sponsored by the Community Project Administration and 180 crores were to form part of the balance for the States. Thus it is obvious that the basic idea underlying the Plan was to evoke popular response to the community projects undertaken in pursuance of the Plan and to leave the execution of different works adopted under the Plan to be fulfilled_by popular local agencies like Village Panchayats.
This policy was emphasised by the Secretary to the Planning Commission in his communication to all State Governments, No. PC/Pub/52/53 dated August 11, 1953 (H-1). This communication, set out the seven categories of work which were most suitable for assistance and it said that the local contribution in cash or kind or through voluntary labour together with any contribution that the State Government or a local body might make should be a minimum of 50 per cent of the total cost of each work. The intention was to spread the benefit over as wide an area and to as many people as possible. The State Governments were accordingly requested to arrange for a detailed scrutiny of the schemes before they were accepted and for making adequate provisions providing for their proper execution. They were also required to nominate a liaison officer for each district or other suitable unit for the purpose of checking the execution of the works and for maintenance of such initial accounts as might be necessary. This communication makes detailed provisions about financing and accounting procedures to be followed and required the State Governments to make progress reports from time to time.'
10. Panchayati Raj was first introduced by enacting the Orissa Gram Pan-chayats Act, 1948 (hereinafter referred to as the 'Panchayat Act') and creating thereunder statutorily Gram Sasans and Gram Panchayats. It was further supplemented, by Orissa Panchayat Samiti Act, 7 of 1959 (hereinafter referred to as the 'Samiti Act') which was enacted on 15th February, 1960. Gram Sasans and Gram Panchayats were constituted by notifications issued under Section 5 of the Panchayat Act. Gram Sasan so constituted becomes body corporate having perpetual succession and a common seal with power to acquire and hold property, to enter into contracts and to do all other things necessary for the purpose of carrying out the provisions of this Act and may sue or be sued in its corporate name. Section 7 provides that there shall be for every Gram. Sasan a Gram Panchayat as constituted under Section 10 and save as otherwise expressly provided by or under this Act the powers, duties and functions of the Gram Sasan shall be exercised performed and discharged by the said Gram Panchayat. By Section 8 the executive power of a Gram Panchayat for the purpose of carrying out the provisions at this Act is to be exercised by the Sar-panch elected under Section 10 who shall act under the authority of the Gram Panchayat. The office of the Sarpanch is honorary and Section 17 vests the Sarpanch with the power to give effect to the decisions of the Gram Panchayat and in certain matters to act according to the directions of the Sub-divisional Magistrate within whose territorial jurisdiction the concerned Gram Sasan is situated. Sections 21 and 22 enumerate respectively the obligatory and discretionary functions of the Gram Panchayats which include undertaking of such works of local or rural benefit as the Government may direct or as the Gram Panchayat by a majority of members decide. Every Gram Sasan will have a Gram Fund, to the credit of which shall be placed, inter alia, all sums received by way of loan or gift as also such other sums as may be assigned to it by way of special or general order of State Government and sums contributed to the Gram Fund by any District Board or other local authority.
Consequent upon establishment of Gram Panchayats and Community Development Blocks in the State it was felt necessary by the State Government to set up an organisation at the district level integrated with the development works and activities at the Block and the village levels. With a view to decentralise administration and to effectively co-ordinate the development activities in the district and to meet the exigencies of the situation it was considered expedient to set up the Zilla Parishad at the top, the Gram Panchayats at the base and the Panchayat Samities at Block level in between, and so the Samiti Act was enacted. Section 15 of this Act provides for constitution of Blocks. On constitution of a Block or a Panchayat Samiti the duties and responsibilities for the execution of development works and all assets and liabilities in respect of such works within the Gram shall be adjusted and apportioned as between the concerned Samitis in such manner as the Collector may direct and in ease of any dispute the decision of Government thereon shall be final. For every Block constituted under Section 15 there shall be a Block Development Officer (hereinafter referred to as the 'B.D.O.') to be appointed by the Government. Government may nominate an officer or non-official person to be the B.D.O. The person so nominated shall become an official member of the Samiti for all purposes of the Samiti Act. Every Block shall have a Samiti. This Samiti shall consist of (a) a Chairman, who shall be elected by members of all the Gram Panchayats within the jurisdiction of the Samiti from emongst persons who are elected as or are eligible to be elected as members of any such Gram Panchayat; (b) one or more of the employees of the Government nominated by designation from each of the Departments dealing with Education, Revenue, Agriculture, Co-operative, Veterinary, Gram Panchayat, Forest, Medical, Health, Works, Welfare and such other Departments as may be notified by the Government; (c) Sarpan-ches of the Gram Panchayats situated within the Block; and (d) various other categories of persons enumerated in Section 16 of the Samiti Act. Section 20 provides that a Samiti may from time to time by order specify, exercise the powers and perform the functions enumerated therein which include planning, execution and supervision of development programmes, schemes and works in the Block relating to Community Development including those pertaining to Tribal Development Blocks for the time being recognised by Government as such, and such other pro' grammes, schemes and works _as Government may, from time to time by general or special order direct in respect of any Samiti, and various other types of functions also enumerated in detail thereunder. Every Samiti shall be a body corporate and shall have perpetual succession and a common seal with power to acquire and hold property, and shall enter into contracts and do all other things necessary for the purposes of carrying out the provisions of this Act and may sue or be sued in its corporate name. The executive authority of the Samiti shall vest in the Chairman and it shall be his duty to have the resolution of the Samiti implemented through the B.D.O. who shall be the Executive Officer of the Samiti and who, subject to rules, shall function under the control of the Chairman of the Samiti, and shall exercise such other powers and perform such other functions as may be prescribed. Section 24 provides that the executive authority of the Samiti shall each year prepare and place before the Samiti the budget estimate for the following year and the Samiti will finally sanction the said budget. Section 28 provides that all moneys received by the Samiti shall constitute a fund called the 'Panchayat Samiti Fund'. The fund shall vest in the Samiti and shall be applied for the purposes specified in this Act and for such other purposes and in such manner as may be prescribed. The B.D.O. shall remain in charge of this fund and administer the same in accordance with the decision of the Samiti.
Thus, it will appear from the provisions of the aforesaid two Acts that a three-tier system of village administration was introduced, statutory bodies were constituted, powers were delimited and vested in them and the respective areas of operation were defined by these Acts. Zilla Parishad at the top had a fund of its own. The Gram Sasan, likewise, shall have a fund of its own. These statutory bodies are body corporates with power to hold and acquire property and all works of rural development or for local benefit are to be undertaken and executed by the Gram Pancha-yats through, their Sarpanchas, whether directions for execution of such works come from and funds provided by the Samitis or they come from State Government and funds provided through the B.D.O. The basic situation remains the same, that is to say, undertaking and execution of such works will be by Gram Panchayat through Sarpanch, irrespective of the nature of financing and accounting procedures to be followed by B.D.O. depending upon the nature of resources received by him and whether or not direction to execute such works comes from the Samiti or Gram Panchayat by means of a resolution, or from the Government directly to the B.D.O.
The aforesaid position is made clear by the Government in its letter No. 1140 (320)-XI-8/61-G.P. dated the 3rd February, 1962 issued by the Secretary to Government of Orissa to all Chairmen of Zilla Parishads and Panchayat Samitis. This letter is printed at page 485 of A Hand Book of Circulars, Volume I. It appears from this letter that the responsibility for the implementation of rural development programmes belongs to the Panchayat Samitis working with the Gram Panchayts at the village level and the Zilla Parishads at the district level. Normally the Zilla Parishad at the district level has to exercise the role of a supervisory and co-ordinating authority and distribute funds allotted to the district among different Panchayat Samitis in consideration of the local requirements. The main executing agency is the Panchayat Samiti, because it has the advantage of utilising the services of the Block Engineering personnel. The procedure to be followed for execution of works by the Panchayat Samiti or the Zilla Parishad, as the case may be, is laid down in a set of rules known as Orissa Zilla Parishad and Panchayat Samiti Accounting Procedure Rules, 1961. With the introduction of Panchayat Raj, Gram Panchayats were more closely associated with development works and were made responsible for planning and execution of development works and programmes in their respective areas. The rules framed for execution of development works by or through the agency of the Gram Panchayats are classified into three categories, viz.: (1) works taken up out of their own resources, (2) works taken up out of allocation of funds for specific purposes made by the Panchayat Samiti and (3) works taken up out of allocations made by Government for specific purposes by way of loans or grants-in-aid either directly or on the advice of the Panchayat Samiti. Government of Orissa in the C.D. & P.R. (G.P.) Department in notification No. 15173-XXX-41/63-G.P. dated 13th September 1963 (printed at page 379 of A Hand Book of Circulars, Volume II) directed that any scheme for advance of cash, loans by Government to cultivators and repayment thereof in the shape of paddy through the agency of the Gram Panchayat shall be operated under the control of the Gram Panchayat who shall be responsible for all matters necessary therefor and incidental thereto. Sums received by the Gram Sasan in connection with the scheme shall stand assigned to the Gram Fund and the expenditure incurred by the Gram Panchayat for the purpose of the implementation of the scheme within its area shall be a charge on the said Gram Fund. It is also clear from the circular No. 16822-XVIII-22/65-G.P. dated the 3rd September, 1965 issued by the Under Secretary to Government in the C. D. & P R. (G P.) Department to all Collectors in the State (printed at page 490 of A Hand Book of Circulars, Volume II) that all loans granted to Gram Panchayats from time to time under various schemes is repayable to the Government and steps must be taken to enforce this order. It is clear from the aforesaid that from whichever source money be advanced to the Gram Panchayat, for financing execution of works or for advancing cash loans to the cultivators, the sole responsibility for such execution or advancement of loan is of Gram Panchayat and with money which constitutes Gram Fund. There is nothing in evidence of P.Ws. 9, 11 and 13 which changes the aforesaid position. Even though specific projects are designated by Government for execution and money is assigned to the B.D.O. for executing the same, those works are necessarily to be undertaken and executed by Gram Panchayats through Sarpanches in exercise of their statutory, obligatory and discretionary functions and duties. State Government has no part to play. There is no power in the B.D.O., even conceding that he, apart from being a statutory authority, is also an agent of Government, to spend money on a project completely independent of the Samiti and execute any project except through the agency of Gram Panchayat. The inevitable conclusions which follow from the aforesaid circulars and the evidence of witnesses and the background scheme, are that all projects and works which are executed through the agency of the Gram Panchayat are not works undertaken by the Government of Orissa, and when the Sarpanch takes the money and spends it in execution of such works, he does so not in any contractual capacity but in exercise of his power vested in him by Section 17 of the Panchayat Act. His action does not bring about any privity of contract between the Sarpanch and the Government regarding execution of works which he undertakes in discharge of his statutory powers and duties. Thus, none of the works covered by the fifteen impugned contracts can be said to be a work undertaken by the Government On this ground alone it must be held that the petitioner cannot be said to have incurred disqualification under Section 9A of the Act. Similar view has been taken in the cases of Lokanath Pradhan v. Birendra Kumar Sahu, AIR 1973 Orissa 60, and Bhagwan Singh v. Rameswar Prasad Sha-stri, AIR 1959 SC 876.
11. I will now refer to the fifteen impugned contract works which were executed through the agency of Rahanj Gram Panchayat serially.
(a) Item No. 1 was decided to be executed through the agency of Rahanj Gram Panchayat. The Sarpanch of the Gram Panchayat, viz., the petitioner, submitted an estimate and took an advance of Rs. 400 for the execution of that work. The amount allotted to the Gram Panchayat for execution of this work belongs to the Bhadrak Panchayat Samiti as deposed to by P.W. 9 who was working at the relevant period as Block Development Officer. The money (Rs. 400) was received on behalf of the Gram Panchayat by the Sarpanch and out of it Rs. 100 is being realised from him by way of certificate proceeding in certificate case No. 15/Misc. of 1968-69. It may be noted that no express resolution was passed by the Gram Panchayat for execution of this work.
(b) Item No. 2 relates to construction of a culvert on Charampa-Sabarang Road. The Samiti sanctioned Rs. 1,500 for this work. Twenty-five per cent of the expenses to be incurred in executing this work is to be contributed by the local public. The Executive Officer of the Block prepared an estimate for this work and as the work was to be executed within the jurisdiction of Rahanj Gram Panchayat, the petitioner as Sarpanch received the money for execution of the work on behalf of the said Gram Panchayat and not in his individual capacity. This is corroborated by Ext. 8 and Ext. CC, which are the entries in the combined cash book, and by Ext. 17/a, a receipt granted by the petitioner where he has designated himself as Sarpanch, This last document has been impeached as a manufactured one, but there is hardly any evidence to substantiate this allegation. Certificate case No. 15 of 1968-69 has been started against the petitioner for recovery of this amount.
(c) Item No. 3 relates to improvement of Kodbaruan L. P. School. The case record Exl. P shows that the Panchayat Samiti by a resolution earmarked a sum of Rs. 500 for this work. The estimate prepared by the Executive Officer for this work was for Rs. 1,000 out of which 50 psr cent will comprise of Government grant and 50 per cent will be people's contribution. This work was to executed through the agency of the Gram Panchayat. The petitioner in the capacity as a Sarpanch received an advance amount of Rs. 450 towards this item of work. This is corroborated by Ext. 17/b, a receipt granted by the petitioner designating himself as Sarpanch. Ext. N, the cash book entry also shows that this amount was paid in advance to the petitioner in the capacity as the Sarpanch. The respondent impeached this Ext. 17/b as a manufactured document, but the same allegation has not been substantiated. This amount is also being recovered under certificate case No. 15 of 1968-69.
(d) Item No. 4 relates to an amount of Rs. 9,983.96 which was advanced to the petitioner for procurement of paddy. The petitioner received this advance by executing two paddy procurement agency agreements with the Collector (Exts. 10 and 10/a). Ostensibly these agreements have been executed by the petitioner in his capacity as Sarpanch of Rahanj Gram Panchayat with the Collector. The preamble to these agreements also indicates that the agreements are with the Rahanj Gram Panchayat through its Sarpanch, the petitioner. These agreements were executed in pursuance to a scheme introduced by the Government in exercise of powers under Clauses (e) and (x) of Section 22 and Clause (i) of Section 40 of the Orissa Gram Panchayats Act. The rele-vant notification is printed at page 379 of A Hand Book of Circulars, Volume II It provides that whenever any scheme for advance of cash loans by Government to cultivators and repayment thereof in the shape of paddy through the agency of the Gram Panchayat is to be implemented within its area, such Gram Panchayat, shall, subject to the terms and conditions determined in that behalf and subject to such further instructions as may be issued from time to time in relation thereto, undertake the control and administration of the said scheme and be responsible in all matters necessary therefor and incidental thereto, and the sum received by the Gram Sasan concerned from Government for advancing the loans to cultivators and sums recovered from cultivators in default of repayment in paddy, shall, for the purposes of and to the extern necessary for the scheme, stand assigned to the Gram Fund. P.W. 10 who is a Supervisor of Supplies says that the Government advances money to Gram Pancha-yats for procurement of paddy. Then the Gram Panchayats procure paddy with the Government money and store the paddy in the grain golas. Money is supplied for procurement of paddy by the Supply Department of the Government of Orissa through the Collector and the S.D.O. to the Panchayat Samiti. Then he says: --
'Disposal of the paddy procured with the money of the Supply Department is within the control of the Gram Panchayat. The policy of paddy procurement is to procure paddy through Gram Pancha-yats from the producers and to sell them locally to needy consumers. The sale proceeds of such, paddy is deposited in the Government treasury by the Grain Pan-chayat.' There is, no doubt, therefore, that the agreements, Exts. 10 and 10/a, were executed by the petitioner in his capacity as the Sarpandh representing Rahanj Gram Panchayat to enforce the scheme of procurement of paddy. The amount received lay the petitioner in respect of item No. 4 has been entered in the Gram Panchayat cash, book which is Ext. 43. This was not necessary if the paddy procurement agency agreements with the Collector were entered into by the petitioner in his individual capacity. The disbursement has been also shown in the cash book as per Ext. 47. It is obvious that whatever part the petitioner had played in relation to this transaction, was in his capacity as Sarpanch of the Gram Panchayat and on behalf of the latter which was in accordance with the intendment of the scheme just referred to above. Certificate Case No, 26 of 1965-66 has been started against the petitioner for recovery of a part of the amount.
(e) Item No. 5 relates to construction, of Rahanj Grain Gola for which the petitioner received a sum of Rs. 3,317 as per B.D.O.'s cash book. This amount belongs to Panchayat Samiti (P.W. 9). It appears from Exts. 17 and 42 that this amount was granted by the Government to Rahani Gram Panchayat and was received by, the petitioner in his capacity as the Sarpanch. The amount was entered in tha Gram Panchayat cash book. The entry Ext. GG shows disbursement of tha amount to Modern Co-operative Labour Contract Society for execution of tha work. Ext. U, the entry in the B.D.O.'s cash book shows that this amount was issued to the petitioner for Rahanj Gram Panchayat. Ext. 17 was called for from the B.D.O., Bhadrak Panchayat Samiti and is in statutory form No. 13 under Rule 143 of the Gram Panchayat Rules. In the circumstances, this item of work is not as a result of any contract entered into by the petitioner in his personal capacity with the State Government. Certificate Case No. 15 of 1968-69 has been started against the petitioner for recovery of this amount.
(f) Item No. 6 relates to construction of Grain Gola at Asura. P.W. 11 who was the B.D.O., Bhadrak from August, 1962 till 1964 says that the work of Asura Grain Gola building has been completed and a sum of Rs. 4,500 was paid to R. K. Mohanty, Sarpanch, Rahanj Gram Panchayat. It was measured by the Overseer and check-measured by him and then final payment was made. Ext. 20 is the detailed contingent bill in respect of several projects mentioned therein, out of which one of the projects is this item No. 6. This witness further says that when a work is completed, a detailed contingent bill is submitted in respect of that work for adjustment of accounts to the Accountant-General, Orissa. According to this witness, the money for execution of this project as mentioned in Ext. 20 was advanced by the Panchayat Samiti to Rahanj Gram Panchayat through its Sarpanch. Exts. 19 and 19/a are the entries in the B.D.O.'s cash book showing payment of Rs. 4,500 to the petitioner as Sarpanch of Rahanj Gram Panchayat. Certificate Case No. 33/P of 1963-64 has been started against the petitioner for realisation of this amount and in that the petitioner has denied his liability on the ground that he has, as Sarpandh, executed the entire work and, accordingly, he is not liable for anything. From the evidence of P.W. 11 which I have no reason to discard, two conclusions emerge viz., that this item of work was not undertaken by the petitioner in his individual capacity under a contract entered into by him with the Government of Orissa, but that he was merely executing it on behalf of the Gram Panchayat through whose agency this work was being executed as per general policy of the Government and that this work has been completed and final payment has been made and, as such, the contract cannot be said to be subsisting on the date of filing of the nomination paper.
(g) Item No. 7 relates to purchase of paddy under grain gola scheme. The case record (Ext. G) maintained in inspect this work shows that the loan gritted by the Government for purchase of paddy was paid, to the petitioner as Sarpanch of Rahanj Gram Panchayat. This was as per resolution of the Panchayat. This payment was made as a result of his application to the B.D.O., Bhadrak (Ext. R). He was authorised by a resolution of the Gram Panchayat (Ext. R-1) to receive this money to purchase paddy for the Utter and receipt has been granted by him in his capacity as Sarpanch (Ext. HH). This transaction is a loan advanced by the Government to the Gram Panchayat for purchase of paddy and is not a contract for supply of goods to the Government. This was an interest-free loan as stated by P.W. 13. Thus, Section 9A of the Act cannot be invoked in respect of this item of work. That apart, the loan incurred hati been repaid to the Government. This will appear from Ext. 49, account book of Ra-hanj Gram Panchayat Grain Gola where the money taken on loan has been shown as paid back and from Ext. 49/a and Ext 49/b which are chalans shoeing deposit of the loan money in the treasury on 27-4-62 and 29-11-65. P.W. 9, B.D.O., Bhadrak, also deposes that the cash book for 1960-61 would show that an amount of Rupees 4,500 was paid to the petitioner in the capacity of Sarpanch, Rahanj Gram Panchayat on 1-7-60 for purchase of paddy under grain gola scheme. It follows that the petitioner had not entered into any contract in respect of this item of work in his individual capacity with, the State Government nor was such contract sub-sisting on the date of filing of the nomination paper.
(h) Leaving items 8 and 9 to be considered last, I will take up item No. 10 which relates to extension of R. C. B L. M. E. School. The case record in respect of the work (Ext. 21) proves that this work was done partly with the money allotted by the Panchayat Samiti and partly by people's contribution and the petitioner as Sarpanch of the Gram Panchayat was advanced two sums-- Rs. 800 on 25-4-63 and Rs. 500 on 15-3-46-- in accordance with the resolution of the Panchayat Samiti for construction of this work. Ext 50/d is a receipt in statutory form No. 13 granted by the petitioner as Sarpanch to the Block Development Officer. P.W. 11 who was the B.D.O., Bhadrak from August, 1962 to 1964 categorically states that Bhadrak Panchayat Samiti entrusted the aforesaid project to Rahanj Gram, Panchayat for execution and the money belongs to the Panchayat Samiti, Thus this was a work undertaken by Rahanj Panchayat Samiti which was being executed through its Sar-panch.
(i) Item No. 11 relates to the work of improvement to Pagada M. 1 Project A ease record (Ext. 23) relating to this work was kept by P. W. 11 who was the B.D.O., Bhadrak then. It appears therefrom that Panchayat Samiti by a resolution sanctioned Rs. 1,500 for this project. This work was to be executed through the agency of Rahanj Gram Panchayat. Ac advance of Rs. 1,000 was paid to the Gram Panchayat through its Sarpanch, the petitioner, for execution of the said project The receipt granted by the petitioner is in the statutory form (Ext. 50/a) and has been granted by the petitioner in the capacity of Sarpanch of Rahanj Gram Panehayat The last order in the case record dated 8-7-63 which is Ext. L also shows the payment of Rs. 1000 by cheque. That is the last order of the case record, From the aforesaid evidence it is not possible to hold that there was any personal contract entered into by the petitioner with the State Government for execution of this work. That apart, this contract work seems to have been abandoned, There is no evidence as to whether this project was completed and whether any further money was spent on the project This cannot be held to be subsisting on the date of filing of the nomination paper, In respect of this item, the presumption of abandonment arises and the burden that such contract is subsisting has not been discharged by the respondent.
(j) Item No. 12 relates to the project of improvement of Bania L. P. School Ext. 26 is the case record in respect of this project. It appears therefrom and from the evidence of P.W. 11 that the project is to be executed at an estimated cost of Rs. 4,100 out of which the people's contribution would be half. The balance half was sanctioned by Bhadrak Panchayat Samiti. Out of this sanctioned amount, a sum of Rs. 1,000 was advanced to the petitioner in the capacity of Sarpanch for execution of the project. Ext. AA is an entry in the B.D.O.'s cash book showing payment of Rs. 1,000 for execution of this project to the petitioner as Sarpanch. Patently, therefore, it was not a personal contract of the petitioner.
(k) Item No. 13 relates to improvement to Chandigan M. E. School Hostel Building for Girls. Bhadrak Panchayat Samiti sanctioned Rs. 1,500 for this project. The total estimated cost for this project was Rs. 3,000 out of which people's contribution was Rs. 1,500. It appears from the case record (Ext. 24) and from the testimony of P,W. 11 that a sum of Rs. 1,500 was sanctioned by the Panchayat Samiti out of which, a sum of Rupees 1,000 was paid to the petitioner as Sarpanch for execution of the project on 18-6-63. This work has been adjusted by way of work done for the project to the tune of Rs. 2,674. By no stretch of imagination can it be said that this work constituted contract of the petitioner with the Government for execution of work undertaken by the latter.
(l) Item No. 14 relates to excavation of a new tank in fodder firm at Kodbaru-an. From Ext. 27, the case record maintained in respect of this work, and from the evidence of P.W. 11 it appears that the entire estimated cost for the project was borne by the Panchayat Samiti. A sum of Rs. 1,300 was paid to the petitioner as Sarpanch from the Panchayat Samiti fund. This project was intended to be undertaken and executed through the agency of the Gram Panchayat.
(m) Item No. 15 relates to the project of. construction of M. E. School Hostel Building for Girls at Chandigan. From the case record maintained in respect of this work (Exts. 28 and 28/a) and from the evidence of P.W. 11 it appears that this work, on the proposal of the Chairman, Panchayat Samiti, was to be undertaken and executed by Rahanj Gram Panchayat. The estimate was Rs, 6,400 out of which 50 per cent was sanctioned by the Panchayat Samiti and 50 per cent was to be contributed by the public. The petitioner, as Sarpanch, representing the Gram Panchayat, has accepted the money in his capacity as Sarpanch and has granted the receipt (Ext. 17/a) to the B.D.O., also in his capacity as Sarpanch.
(n) Item No. 8 relates to execution of the work of construction of wooden culvert on Jamujhadi-Khirkona Road and item No. 9 relates to the work of construction of R. C. Decking culvert on Jamujhadi-Khirkona Road. Two written contracts were executed by the petitioner for items 8 and 9 which are respectively Exts. FFF and EEE. These two written contracts are in F-2 form. One party to the contracts appears to be the Governor of Orissa and the other party is Modern Labour Co-operative Contract Society of which the petitioner is the President. These two written contracts have been signed by the petitioner as President of that Society. The terms and conditions of these two written contracts are identical. Ext. JJJ, the case record in respect of item No. 8 indicates that the petitioner was entrusted to do the work after executing the agreement and the order dated 24-11-66 shows that the final bill was passed and a balance of Rs. 722 was to be paid in final settlement of the bill. It also records that the contractor should return the material used in the tube-well. Later that very day an order was passed showing payment of Rs. 722. Clause 6 of these written contracts provides that on completion of work, the contractor shall be furnished with a certificate by the Executive Engineer of such completion. Clause 9 provides that the materials sup-plied to the contractor shall remain the absolute property of the Government and, on completion or determination of the contract, shall be returned to the Engineer in charge. Relying on these two clauses, in absence of any proof of completion certificate, and on the order dated 24-11-66 in Ext. JJJ showing that the contractor was to return the materials used in the tube-well, and, in the absence of any evidence that such materials have been returned, it was argued that the contract in regard to item No. 8 must be held to be subsisting. Reliance was also placed on the evidence of R.W. 11 in this connection who says that if the materials as per order dated 24-11-66 had been returned there should have been some record of it in the order-sheet. It is contended, therefore, that in the absence of any record in the order-sheet showing return of the materials, the contract must be said to be subsisting. Exts. 55/a, 55/b, 56/a and 56/b read with the evidence of R.W. 11 show that tenders for execution of items 8 and 9 were called for by the Chairman of Simulia Panchayat Samiti and accepted by him and that these items of work had been taken up for the Panchayat Samiti. For these two contract works, therefore, Simulia Panchayat Samiti was a party, the other party being Modern L. C. C. S. of which the petitioner was the President. This inference is corroborated by the fact that the two F-2 contracts (Exts. FFF and EEE) have not been executed by any officer of the Government of Orissa which should have been normally expected if these two contracts were intended to be entered into with such Government. Therefore, the reasonable inference is that these two contracts were entered into by Modern L. C. C. S. with the Simu-lia Panchayat Samiti, but that mere F-2 forms were used which are normally used by the Public Works Department in relation to contracts entered into with the Government of Orissa. In my opinion, therefore, items 8 and 9 were not contracts with the Government of Orissa. Secondly, it appears from the order-sheet of the case record that the work has been completed and has been measured, final bill passed and the entire amount due to the Modern L. C. C. S. has been paid. Though the case record of the contract relating to item No. 8 shows that materials were directed to be returned, there is no evidence that such materials were not returned at all. A mere statement of R.W. 11 that if materials had been returned there should have been entries in the case record is not conclusive. The onus of proof being on the respondent who has alleged that this contract was subsisting on the date nomination papers were filed, he must be held to have failed to discharge the same in the absence of evidence as to whether materials have been returned or not and no presumption can be drawn against the petitioner that materials were not returned and, as such, this contract was subsisting. Therefore, in my opinion, the contention regarding item No. 8 that it was subsisting is not acceptable.
Another aspect of these two contracts is that the petitioner as President of Modern L. C. C. S. has accepted the tender and signed the contract and, as such, he cannot be said to have entered into such contracts in his individual capacity. As already shown above the Supreme Court has stated time and again that where the Chairman of the Board of Directors of Company has entered into a contract with the Government, he cannot be said to have entered into such a contract in his individual capacity and the mischief of Section 9A of the Act cannot be attracted. Similarly, a contract existing between a Co-operative Society and the Government would not disqualify its Chairman from being a candidate. Co-operative Societies or Companies have personalities of their own and when a Chairman acts on their behalf he does not act in his personal capacity. Therefore, even if the contract works as per items 8 and 9 are held to be contracts with the Government of Orissa those contracts must be taken to have been effected with the Modern. L. C. C. S., the petitioner having executed those contracts in the capacity as the President of the Society, and not with the petitioner individually. Thus the petitioner cannot be held to have incurred disqualification under Section 9A of the Act. It is argued by Mr. Mohanty that though the petitioner has signed these agreements ostensibly in the capacity as President of the Modern L. C. C.S., yet he as a President does not have power to execute such agreements and, as such, these contracts must be deemed to have been executed in his personal capacity. Ext. PP which are bye-laws of the Modem L. C. C. S. provide that the management of the business of the Society shall vest in a Board of Directors, and that the Board of Directors shall have power to enter into contracts for execution of public or private works or to undertake piece or job work on behalf of the Society. They also provide that the Board of Directors may frame regulations for conducting business of the Society consistent with the Act. the Rules under the Act and the bye-laws, subject to approval of the Registrar. So if may be that regulations are there empowering the President to execute contracts on behalf of the Society. The petitioner himself in his deposition says that he executed the agreements (Exts. EEE and FFF) on behalf of the Society and those two documents bear the seal of the Society. Apparently, therefore, the presumption is that the petitioner as President of the Society had power to execute the agreements. Of course, the regulations have not been proved. But there is no conclusive evidence adduced on behalf of the respondent that there are no regulations in existence. Even if the petitioner lacked power to execute contracts, it might affect their validity, but the factum of execution of the contracts on behalf of the Society remains. Further, the Simulia Panchayat Samiti treated the contracts as ones with the Modern L. C. C. S. In the circumstances, this objection cannot be upheld. For the aforesaid reasons, it cannot be said that items 8 and 9 were contracts executed by the petitioner in his individual capacity with the Government of Orissa for works undertaken by them.
12. There is another aspect with regard to items 1 to 6, which would indicate that the petitioner could not have established contractual privity with State Government in respect of those works. Certificate cases have been started for recovery of part or whole of the amount received by the petitioner for execution of those works. Such demands are not public demands within the meaning of Section 2 (g) of the Orissa Public Demands Recovery Act read with Schedule I thereof. Mr. Mohanty indicated that Clause 11 of Schedule I is applicable. But since there is no written instrument that such, demands are recoverable as public demand, that clause does not apply. On the other hand, Ext. 12 indicates that the certificate proceeding was started in pursuance to Section 121 of the Orissa Gram Panchayat Act, 1964 which provides that where on the application of a Gram Panchayat the Sub-divisional Officer is of the opinion that any person, who in the capacity of a member, Sarpanch, Naib-Sarpanch or officer or other employee of the said Gram Panchayat had in his custody any record or money belonging to it, after his removal or suspension from or the termination of his office is not likely to deliver such record or pay such money, the Subdivisional Officer may, by a written order, require that the record or money so detained be delivered or paid to the Gram Panchayat forthwith, and if any such person as aforesaid shall not deliver the record or pay the money as directed, it shall be lawful for the Sub-divisional Officer to recover such money as an arrear of land revenue. This itself is indicative that the money received by the petitioner in relation to items 1 to 6 was the money received by him in the capacity of Sarpanch and not in his personal capacity in contractual transactions with the Government of Orissa for execution of the works enumerated in those items.
13. On the aforesaid analysis, the aforesaid fifteen transactions cannot be held to be contracts entered into by the petitioner with the Government of Orissa nor were those contracts related to works undertaken by the Government of Orissa. Even though in some cases there are no corresponding resolutions of the Gram Panchayat forthcoming approving execution of those works by it, that would not affect the stand of the petitioner, as is corroborated by documentary evidence, that he has executed those works on behalf of the Gram Panchayat. In some cases evidence is clear that the expenses for execution of works are not wholly met from funds allotted to Gram Panchayat but also by public contribution. There is no profit motive in these executions of works nor is there any evidence forthcoming showing that the petitioner in fact was earning profit by getting these works executed. He as a statutory authority was merely discharging his functions in getting the works done or executed with the funds as made available to him. In all his activities in relation to the aforesaid transactions, he has been invariably proclaiming himself as acting in the capacity of a Sarpanch and not in his personal capacity. Applying the principles laid down by the Supreme Court in the cases already referred to above, I must hold that none of these fifteen impugned instances of contract would entail disqualification under Section 9A of the Act. This issue, therefore, is answered in favour of the petitioner. In the result, it must be held that the nomination paper of the petitioner has been improperly rejected and the respondent's election must, therefore, be held to be void.
Issue No. 1.
14. I will now take up the issue as to whether the election petition is liable to be dismissed for non-compliance of Sections 81, 82 and 83 of the Act. Section 81(3) of the Act prescribes that 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 main petition. Section 86(1) of the Act imposes a duty upon the High Court to dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 117 of the Act. As held in the case of Ajit Prasad Narayan Singh v. Nandini Satpathy, ILR (1974) Cut 64, the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it and it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the Legislature takes it out of its own hands and vests in a special Tribunal an entirely new and unknown jurisdiction, that special jurisdiction, should be exercised in accordance with the law which creates it. Accordingly the petitioner has, prima facie, to satisfy the High Court that his application is in accordance with the above sections. It was also held in the aforesaid case that if the election petition was not accompanied by true copies of the election petition attested by the petitioner under his own signature, there was no proper presentation and it must be held that Section 81(3) of the Act has not been complied with and would entail dismissal of the election petition on that ground alone. Rule 6 of the Rules framed by the High Court to regulate proceedings under the Act provides that the election petition shall be presented along with the necessary copies, and all copies of the petition shall conform to the original, page by page. Immediately after the presentation, the date of presentation shall be endorsed thereon and shall be entered in a special register. Rule 7 provides that every election petition on presentation shall be examined by the Stamp Reporter who shall certify thereon whether the petition is in conformity with the requirements of law and the rules applicable to the same and the petition with the defects or omissions, if any, as reported by the Stamp Reporter, shall be referred to the judge who has been assigned by the Chief Justice for the trial of the election petition for orders under Section 86 of the Act, Rule 8 provides that if the petition is not dismissed under Section 86(1) of the Act, a summons shall be issued to the respondent simultaneously through court and by registered post.
The petition was presented by Shri S. Misra-2, Advocate on 12-4-74 before the Registrar. The office note on the order sheet dated 15-4-75 runs as follows:--
'Security money deposited under dK No. 26 dated 12-4-74.Summons to respondent for W. S. and also a copy of E. P. filed. For stamp report.'
The stamp report was made on 17-4-74. The Stamp Reporter found the following papers filed, viz.: (1) original election petition, (2) power on behalf of the petitioner, (3) copy of the petition and (4) Chalan showing deposit of Rs. 2,000, Neither the office note nor the stamp report expressly states that a copy attested by the petitioner under his own signature to be true copy of the original petition was filed along with original. The election petition does not bear any certificate from the Stamp Reporter that the petition was in conformity with the requirements of law and the Rules applicable to the same. The High Court Rules enjoin upon the Stamp Reporter to specifically focus his attention on the question as to whether the petition was in conformity with the requirements of Section 81(3) of the Act and to give a certificate if it was in conformity with that section. He has not certified in that manner. There is also no special form of certificate prescribed under the Rules. But it appears that a copy accompanied the original petition. There is also a stamped endorsement in Stamp Reporter's report which runs as follows:--
This, prima facie, means that the election petition was in conformity with require-ments of law, in other words, an attested copy accompanied the original election petition. That copy was served by hanging at the door of the respondent as will appear from the service report (Ext. EE) and has not been produced. P.W. 13 has stated that he filed an exact copy and R.W. 10 who denies is not competent to say so as he appeared much later in the case. The peon's report has been impeached as untrue on the basis of oral testimony of some attesting witnesses to that report, but the peon has not been examined by either side. If the peon did not serve the copy, he must have returned it to this Court and that copy would be on record, but it is not on record. In these circumstances, there is a presumption that an attested copy was filed along with the original election petition and it was for the respondent to rebut that presumption, as also to discharge his initial burden of establishing his objection as to maintainability of election petition on account of non-compliance of Section 81(3) of the Act. He could have done so by examining the Registrar, the Stamp Reporter and the Office Assistant who registered the election petition in the Registry. For reasons best known to him, the respondent has chosen not to do so. Further, R.W. 4 says that when the peon went to the house of the respondent, his wife was there as the only adult member of the family and she could have been examined on commission to prove that there was no service by hanging and such evidence could have given some countenance that the petitioner suppressed that copy with the connivance of the peon. Such a theory without requisite evidence is unacceptable. In these circumstances, the plea of non-compliance of Section 81(3) of the Act is liable to be rejected. A similar view was taken in similar circumstances in the case of Mohansingh Laxmansingh v. Bhanwar-lal, AIR 1964 Madh Pra 137 (150). The fact that the copy which was served subsequently by order of Hon'.ble Chief Justice was not an attested copy is not relevant to this issue. This issue must, therefore, be answered in the negative. Issue No. 2.
15. The next issue for consideration is whether the nomination paper filed by the petitioner was in substantial compliance of Sections 33 and 34 of the Act. Since there, is no evidence on behalf of the respondent that the deposit requir-ed to be made under Section 34 of the Act was not made, the nomination paper filed by the petitioner must be taken to have been made in compliance thereof. It is next to be seen if filing of nomination paper was in compliance of Section 33. The importance of this point lies in this. If there has been non-compliance of Section 33 of the Act in presentation of the nomination paper and it has been accepted on scrutiny, when it should have been rejected under Sub-section (2), Clause (b) of Section 36 of the Act, it would amount to improper acceptance of a nomination within the meaning of Section 100, Sub-section (1), Clause (d) (i) of the Act. If the High Court is of opinion that by such improper acceptance of nomination paper the result of the election, in so far as it concerns a returned candidate has been materially affected, the High Court shall declare the election of the returned candidate to be void. This ground of objection was admittedly not raised before the Returning Officer at the time of scrutiny. Mr. Das for the petitioner, therefore, contended that this is a new ground raised for the first time in this proceeding and should not be entertained. Reply to this preliminary objection is to be found in the case of Veluswami Thevar v. Raja Nainar, AIR 1959 SC 422, where it has been said that the enquiry before the Tribunal must embrace all the matters as to disqualification and it cannot be limited to a particular ground of disqualification which was taken before the Returning Officer.
I, therefore, proceed to deal with the merits of this point. Section 33 deals with presentation of nomination paper and requirements for a valid nomination. Subsections (1) and (4) of this section which are relevant are extracted hereinbelow:--'(1) On or before the date appointed under Clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as provided that no nomination paper shall be delivered to the Returning Officer on a day which is a public holiday.
XX XX XX
(4) On the presentation of a nomination paper, the Returning Officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls.'
Proviso to Sub-section (6) of this section lays down that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the Returning Officer for election in the same constituency. The presentation must be in the prescribed form, that is, in accordance with the Conduct of Election Rules, 1961. Rule 4 provides as follows:--
'Every nomination paper presented under Sub-section (1) of Section 33 shall be completed in such one of the Forms 2A to 2E as may be appropriate : Provided that a failure to complete, or defect in completing, the declaration as to symbols in a nomination paper in Form 2A or Form 2B shall not be deemed to be a defect of a substantial character within the meaning of Sub-section (4) of Section 36.'
This proviso indicates that defect referred to in this proviso shall not be deemed to be a defect of a substantial character within the meaning of Section 36(4) of the Act, implying that other failures in completing the nomination paper in prescribed form would be defects of substantial character. Form 2B requires that the date and time of presentation and the person presenting, that is the candidate or the proposer, should be indicated and that a receipt for nomination paper is to be handed over to the person presenting the same. Four nomination papers have been proved in this case which are Exts. 29, 30, 31 and 32. It appears that all the papers were presented at 1-45 p.m. on 25-1-74. These exhibits show that the receipt parts of the forms have been detached from the original nomination form and must havn been handed over to the persons presenting the same. Those receipts, however, have not been produced. P.W. 1 who had acted as an Assistant Returning Officer has stated that the moment a nomination paper is filed a receipt in the prescribed form which is appended to the bottom of the nomination paper is to be granted to the person presenting the same. The same procedure is to be repeated each time a fresh nomination paper is presented. This evidence is in accord with the rules in the form. Therefore, receipts must be presumed to have been granted to the persons presenting the nomination papers. There is discrepancy in the evidence as to the time and manner of presentation. In absence of examining the Returning Officer, it must be taken that all the four nomination papers must have been filed in a bunch. aS the evidence stands, the presentation was made either by the petitioner or the proposers, and, therefore, despite discrepancy as to who of them presented and how many, presentation cannot be held to have been made in non-compliance of Section 33. The further case of the respondent is that the petitioner secured blank forms signed by the proposers and the bank columns were later filled up. This amounts to non-compliance of Section 33 as it was not complied in prescribed form and signed by the candidate and his proposer, because as Form 2-B indicates the proposer is to sign after the column regarding candidate's name has been filled up. Three proposers have been examined, namely, P.Ws. 2 and 3 and R.W. 3. It appears from their evidence that all of them signed the nomination papers knowing that the petitioner's name was being proposed and intending to propose him as a candidate for election. In that view, notwithstanding that the nomination paper has been signed by the proposer before the columns are filled up, it will be good and valid and such nomination paper can be treated as having been completed in the prescribed form and signed by the proposer. It is not, therefore, possible to hold that there has been non-compliance of Section 33 in the matter of signing of the nomination paper. This view is in accord with the view expressed in the case of Shanta Devi Yaidya v. Bashir Husain Zaidi, (1953) 8 ELR 300 (Ele. Tribunal Faizabad). This issue must, therefore, be answered in the affirmative.
16. In result, I am of opinion that the nomination of the petitioner has been improperly rejected by the Returning Officer, and, accordingly, declare that the election of the returned candidate, namely, the respondent, is void, and his election is set aside.
The election petition is allowed with costs. Hearing lee assessed at Rs. 500.