(1) In this appeal under S. 116A of the Representatives of the People Act 1951, a very short point falls for determination. That point is whether the nomination papers of Charan Das one of the candidate for the election in question were improperly rejected.
(2) The controversy arises out of election to the Punjab Legislative Assembly from Barnala constituency held in February, 1962. There were three candidates who went to the polls. Gurbakhshish Singh the successful candidate polled 26, 882 votes and 1, 157. The nomination papers of Charin Dass and Onkar Prashad were rejected. Ranjit Singh voter election petition challenging Gurbakshish Singh's election on the ground that the nomination papers of Charan Dass and Onkar Prahad alias Om Prashad had been improperly rejected., The Returning Officer has at the time of scrutiny rejected these two nomination papers but we are mainly concerned with the ordered on the ground that Charan Das was a Government contractor and had us sitting contracts and was therefore disqualified in law to be member of Legislature. The learned Tribunal came to the could be gathered that Charan Das had subsisting with the result that the rejection of his nomination Gurbakhshish Singh was accordingly set aside. In Parshad the Tribunal came to the conclusion that they had been rightly rejected.
(3) On appeal it has been fairly and frankly conceded by the learned counsel for the appellant that there is not positive evidence on which it can be found that Charan Dass had a subsisting contract with the appropriate Government for the supply of goods to or for the execution of any works under taken by the Government. He has, however, contended that the Returning Officer having found that Charan Dass had a subsisting contract with the Government entailing his disqualification for being chosen as and for being a member of the state Legislature there was a very heavy onus case on him in the election petitioners to show by affirmative evidence that he was not so disqualified and unless it is conclusively contract the order of the Returning Officer must be held to be proper and unassailable and the election petitioners must be dismissed.
(4) I am wholly unable to accede to this contention. It is settled beyond the pale of controversy that the proceeding in an election petition is not an appeal from the order of the Returning Officer rejecting nomination papers of a candidate, nor is the controversy or investigation before the Election Tribunal confined to the pleas and the evidence before the Returning Officer. As observed by the Supreme Court in N. T. Veluswami Thevar v. G. Raja Nainar AIR 1959 S C 422 the enquiry which a Returning Officer has to make under S. 36 of the Representation of the People Act 1951 is summary enquiry if any as he thinks necessary'; he can even act so motu. Such being the nature of the enquiry the right which is given to a party under S. 100(1)(c) and S. 100(1)(c) and S. 100(1)(d)(i) to challenge the property of the order of the rejection of a nomination paper would become illusory if the Election Tribunal is to base its decision only on the material placed before the Returning Officer. This decision has been followed in this Court in Banns Ram Naru Ram v. Jit Ram, Gehru Ram AIR 1964 Punj 231 and more recently in Pritam Singh v, S. Ranjith Singh F. A. O. No. 1-E of 1964 D/- 14-7-1964: (AIR 1965 Punj 39).
(5) The appellant's learned counsel has read certain parts of the evidence led by the parties before the Election Tribunal buts already observed he has been unable to find any material on the record showing the subsistence of any contract between Charan Dass and the appropriate Government offending the law of election. All that the appellant Shri Gurbakhshish Singh the returned candidate as R. W. 12 has been able to depose is that the nomination papers of Shri Charan Dass were objected to most probably by Shri Gulab Singh on the ground that he was a contractor of P. W. D. and Charan Dass admitted himself to be a contractor at that time. The Returning Officer required Charan Das to file an affidavit which he refused to do In cross examination however he was constrained to admit his inability to assert whether Shri Charan Dass had a subsisting contract at the relevant period of time. Reference to the order of the Returning Officer clearly belies the assertion by the appellant that Charan Dass had admitted before the said officer that he had a subsisting contract of the offending nature.
In the witness box, Charan Dass P., W. 6 has clearly sworn that in the days of scrutiny had no Government contract in had nor nay bill of his was outstanding. He was put a number of question in regard to various departments and he repeated that he has on 27-1-1962 no contract subsisting entered into by him in the course of his trained or business with the Punjab Government for the supply of goods to or for the execution of works undertaken by the said Government. This he did after referring position on 29-1-1962, the date of scrutiny. It is undoubtedly true that final payment of some contract that is far from relevant for the purpose of attracting the disqualification with which we are concerned. At the time of his examination as a witness he undoubtedly had a contract in had given by the Drainage Sub-Division Charan Dass had also produced certain Chief Engineers of some departments of the Government of the Punjab for the purpose of establishing that at the relevant point of item he had no subsisting contract with those departments.
(6) This disqualification's with which were are concerned is contained in S. 7(d) of the Representatives of the People Act 1951 and is in the following terms:--
'7. Disqualification's for memberships of Parliament or of a State Legislature--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--
* * * * * (d) if there subsists a contract entered into the course of his trade or business by him with the appropriate Government for the supply of goods to or for the execution of any works undertaken by that Government.'
It is obvious that the disqualification resulting from this provisions is conditioned inter alia by the Circumstances that there must be a subsisting contract (that is to say in actual existence) between the appropriate Go and the candidate. Now if there in which Charan Dass could have proved the non-existence or non-subsistence of a contract is a mere denial. I can understood if the other party subsisting at the relevant time then it would perhaps have been incumbent o n Charan Das s to adduce more convincing evidence to the contrary establishing that no such contract was in fact so subsisting but when the allegation in support of the disqualification was vague and general then in my opinion Charan Dass could do not better than swear a denial as to the subsistence or actual existence of any contract of the offending nature. In the case in hand he has indeed gone further and also produced several very high officials including some Chief Engineers to the Punjab Government who have no oath supported his denial. It is noteworthy that the appellant did not succeed in eliciting anything from those witnesses which would cast any doubt on Charan Dass's assertion or would convincingly suggest that there was in subsistence or actual existence an offending contract.
(7) The appellant's learned counsel has also arched that the rejection of nomination papers of Charan Dass on the material placed before the Returning Officer could not be considered to be improper and therefore s. 100(1)(c) would be inapplicable. In support of this contention he has cited a Judgment of the Supreme Court in Durga Shankar Mehta v. Raghuraj Singh 9 Ele 491: (AIR 1954 SC 520). The following passage from the Judgment has been emphasised:--
'If the want of qualification of a candidate does not appear on the face of the nomination paper of the electoral roll but is a matter which could be established only by evidence an enquiry at the stage of scrutiny of the nomination papers it requires under the Act only if there is any objection to the nomination. The Returning Officer is then bound to make such enquiry as he thinks proper on the result of which he can either accept or reject the nomination. But when the candidates appears to the properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination the Returning Officer has no other alternative but to accept the nomination. A little lower down the following passage has also been read by the Counsel in this connection.
'As no objection was taken to this nomination before the Returning Officer at the time of scrutiny the latter was bound to take the entry in the electoral roll as conclusive; and if in these Circumstances he did not reject the nomination of Vasant Rao, it cannot be said that this was an improper acceptance of nomination on his part which S. 100(1)(c) of the act contemplates. It would have been an improper acceptance. If the want of qualification was apparent on the electoral roll itself or on the fact of the nomination paper and the Returning Officer over looked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him. When neither of these things happened the acceptance of deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may on evidence placed before it come to finding that the candidate was not qualified at all.'
It has been processed before us that similarly if the material before the Returning Officer justified rejection of the nomination papers such rejection could not be considered to be improper.
(8) I am wholly unable to agree with the reasoning of the learned counsel. The observation in the reported case have to be read in the background of the facts on the record and must be confined to the solution of the problem which faced the Court there. It may be pointed out that S. 100(1)(c) which concerned the Court in the reported case was in the following terms:--
'100. Grounds for declaring election to be void (1) If the Tribunal is of opinion--
* * * * (c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void.
* * * *.' After the amendment the two provisions dealing with improper acceptance and improper rejection of nomination are in the following terms:--
'100. Grounds for declaring election to be void--(1) Subject to the provisions of sub-s. (2) if the Tribunal is of opinion--
* * * * (c)that any nomination has been improperly rejected;
(d) that the result of the election of the returned candidate to be void.'
I have clarified this position in order to avoid confusion which may be caused by reference to S. 100(1)(c) of Act 43 of 1951 as it stood for the presupposes of Durga Shankar's case 9 Ele LR 494: (AIR 1954 SC 52) and as it stands now. The position of accepting a nomination papers which on the face of it is free form any legal infirmity and to which no objection has any legal infirmity and to which no objection has been raised is clearly difference an distinguishable from that of the rejection of a similar nomination paper free from any legal infirmity on the face of it but to which an objection has been successfully raised before the Returning Officer and the objection is shown to the Election Tribunal to be unsustainable. In this latter case the rejection must from the very nature of things to held to be improper. Even on the material before the Returning Officer in the case in hand. Charan Das nomination papers cannot be held to have been improperly rejected.
(9) The entire evidence having been led before the Tribunal and on the evidence so led it being clear that Charan Dass was not disqualified and not serious attempt having been made to prove the subsistence of a contract entailing disqualification the order rejecting his nomination papers can be no means be held to be proper or justified. It is thus not possible to sustain the contention that his nomination papers wear not improperly rejected.
(10) For the foregoing reasons, this appeal is without merit and is dismissed with costs.
(11) Appeal dismissed.