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TMI Blog1987 (12) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... had been filed before the expiry of the time fixed for making nominations. Respondent No. 3, M. Bhattacharjee, was the Returning officer. At the time of the scrutiny respondent No. 2 raised objection to the nomination of respondent No. 1 on the ground that respondent No. 1 had not completed 25 years of age on the date of scrutiny as required by Article 173(b) of the Constitution which provided that a person was not qualified to be chosen to fill a seat in the Legislature of a State unless he was in the case of a seat in the Legislative Assembly not less than twenty-five years of age and in the case of a seat in the Legislative Council not less than thirty years of age. The proposer of one of the nomination papers filed on behalf of the respondent No. 1 prayed for some time to refute the objection. The Returning Officer, however, proceeded to reject the nomination papers filed on behalf of the 1st respondent on 23.11.1985 holding that the 1st respondent had not completed 25 years of age and therefore was not qualified to be a member of the Legislative Assembly. The election process continued with only the appellant and the second respondent as the candidates and after the poll the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , whether the nomination paper of the petitioner was liable to be rejected as alleged in para 7 of the written statement? 6. Whether the petitioner had incurred disqualification under Section 9A of the Representation of the People Act? 3. After recording the evidence produced by the parties the learned Judge of the High Court who tried the election petition held that the 1st respondent had completed the age of 25 years on the date of scrutiny and therefore he had the necessary qualification for being a member of the Legislative Assembly. He accordingly held on the first part of issue No. 5 in favour of the 1st respondent. On the second part of issue No. 5 the learned Judge held that the appellant had not proved that the 1st respondent had not subscribed an oath as required by law. On issue No. 6 the learned Judge held that the 1st respondent had been relieved from the charge of Phulbari Ghat Ferry with effect from 21.11.1985 and therefore there was no subsisting contract between the 1st respondent and the Government of Assam on the date of scrutiny of nominations and therefore the 1st respondent was not disqualified under Section 9-A of the Act. In view of his findings rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove issue. 6. Three questions arise for consideration in this appeal: (i) whether the 1st respondent had not completed the age of 25 years on the last date for filing nomination?; (ii) whether the contract in question said to have been entered into by the 1st respondent with the Government of Assam to collect the toll at the ferry was a contract for the execution of any works undertaken by the Government of Assam attracting Section 9-A of the Act and if so whether the said contract was subsisting on the date of scrutiny of nomination?; and (iii) whether the 1st respondent held an office of profit under the Government of Assam by virtue of being a lessee of the right to collect the toll at the ferry? 7. On the question of the age of the 1st respondent there is practically no evidence adduced on behalf of the appellant. The Electoral Roll, which was marked as Exhibit 7, in the case showed that the 1st respondent was aged 29 years. In support of his case, the 1st respondent had examined three witnesses, P.W.2 Aripulla, P.W.3 Sirajul Islam and P.W.6 Habibar Rahman. He also produced his High School Leaving Certificate (Exhibit 12) which showed that he was above 25 years on the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 18.11.1985 released the petitioner from the contract and that the order of release had been made after the scrutiny was over. The High Court had, therefore, to consider the question whether the order of release had been made on the 21.11.1985 or on 25.11.1985 after the scrutiny of nomination papers. On a consideration of the evidence led by the parties, the High Court held that the 1st respondent had been relieved of the charge of the ferry on 21.11.19 85 and that he was not disqualified under Section 9-A of the Act. As stated earlier when the matter was argued before us on the first date of hearing the learned Counsel for the parties were asked to make their submission on the question whether a lease of the ferry tolls attracted the provisions of Section 9-A of the Act and the learned Counsel have made their submissions in that behalf. The management of a public ferry is governed by the provisions of the Northern India Ferries Act, 1878 (hereinafter referred to as 'the Ferries Act') which has been extended to the State of Assam. Section 8 of the Ferries Act reads thus: 8. Letting ferry tolls by auction - The tolls of any public ferry may, from time to time, be let b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic ferry and not employed or transmitted on the public service. The State Government is, however, given power to declare that any persons, animals, vehicles or other things shall be exempt from payment of such tolls. Where the tolls of a ferry have been let under Section 8 of the Ferries Act any such declaration, if made after the date of the lease, shall entitle the lessee to such abatement of the rent payable in respect of the tolls as may be fixed by the Commissioner of the Division or such other officer as the State Government may, from time to time, appoint in this behalf by name or in virtue of his office. The Rules have been framed by the Chief Engineer, Assam under Section 12 of the Ferries Act for purposes of the control and management of and for regulating the traffic at all Government ferries. Under the said Rules, for Government ferries suitable ferry boats, engines or mars are supplied at the expense of the Public Works Department. The lessee shall be responsible as a bailee for these boats, engines and mars and he shall, on the expiry or earlier termination of his lease, return them to the Executive Engineer in good condition, allowance being made for fair wear and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontesting the election to the State Legislature under Section 9-A of the Act. At this stage it is necessary to set out the history of the provisions contained in Section 9-A of the Act. When the Act was enacted originally there was Section 7 of the Act the relevant part of which read as follows: 7. A person shall be disqualified for being chosen as and for being a member of the either House of Parliament or of the Legislature Assembly or Legislative Council of a State - (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. 12. In 1958 this provision was amended. In the Statement of Objects and Reasons of the Representation of the People (Amendment) Bill, 1958, which was enacted as the Representation of the People (Amendment) Act, 1958 it was stated as follows: The language of Section 7(d) of the 1951 Act which provides for disqualification in case of contracts with the Government is wide and vague enough to bring any kind or cate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... An explanation was, however, added to it which provided that only by reason of the fact that the Government had not performed its part of the contract either wholly or in part, it could not be said that the contract which attracted Section 9-A was subsisting where a contract had been fully performed by the person by whom it had been entered into with the appropriate Government. 16. An analysis of Section 9-A of the Act shows that only in two cases a person would be disqualified if he has entered into a contract with the appropriate Government in the course of his trade or business which is subsisting on the date of scrutiny of nomination. They are (i) when the contract is one for supply of goods to the appropriate Government and (ii) where the contract is for the execution of any works undertaken by that Government. If a contract belonging to either of the two categories is subsisting on the date of the nomination, the person will be disqualified for being chosen as a member. In the present case the contract is not one for supply of goods to the Government. It does not, therefore, fall under the first class of contracts which create the disqualification. The question for determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaken by the Government was the sale of foodgrains under the Grain Supply Scheme and the contract was not for the sale of such foodgrains and did not attract the provisions of Section 7(d) of the Act. This Court held that the contract was not one for the purpose of any service undertaken by the Government and the appellant therein was not disqualified under Section 7(d) of the Act. The Court held that a contract of bailment which imposed on the bailee the obligation to stock and store the food-grains in his godowns was not a contract for the purpose of the service of sale of grain which the Government had undertaken. The Government had undertaken the work of supplying grain but the contract was not one for the supply of grain. The Court distinguished the decision in N. Satyanathan v. K. Subramanyam (supra) while reaching the conclusion that the appellant was not disqualified for being chosen as a member of the Bihar Legislature. So even at a time prior to the amendment of Section 7(d) of the Act in the year 1958 it was possible to take the view that certain types of contracts entered into with the appropriate Government, even though they were subsisting on the date of scrutiny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the toddy shop also he had to pay monthly rentals and if he fell in arrears the same could be recovered as arrears of land revenue. There were other incidental conditions in the agreements. The Andhra Pradesh High Court held that since the contracts entered into by the successful candidate with the State Government to sell arrack and toddy did not come within the State Government to sell arrack and toddy did not come within the mischief of Section 9-A of the Act as they were neither for supply of goods to the Government nor for the execution of any works undertaken he did not suffer from any disqualification for being chosen as a member of the Legislative Assembly. We have gone through the above decision carefully. We are of the view that the High was right in the said case in holding that the returned candidate had not suffered from any disqualification by reason of the fact that he was an excise contractor. 18. In the present case the position of the 1st respondent is more or less similar to the position of the returned candidate in the decision of the Andhra Pradesh High Court. The 1st respondent had acquired in the public auction the right to collect the toll by paying t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caused to the mar boats striking against such submerged obstructions or dangerous rocks it should be held that the 1st respondent had undertaken to execute works undertaken by the Government. The above condition only requires the lessee to mark buoys or in any other suitable manner the places where there were any submerged obstruction or dangerous rocks within half a mile of the landing ghats. Having regard to the conditions of the lease and the provisions of the Act and the Rules made thereunder we are clearly of the view that the activity undertaken by the lessee under the agreement cannot be considered as an agreement for execution of works undertaken by the State Government. 20. We are, therefore, of the view that the contract which the 1st respondent had entered into with the State Government even though it was subsisting on the date of scrutiny of nominations would not have the effect of disqualifying him for being chosen as a member of the State Legislative Assembly since Section 9-A of the Act is not at all attracted to such a case. 21. The learned Counsel for the appellant however tried to justify the rejection of the nomination papers of the 1st respondent on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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