TMI Blog2006 (1) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1951 [for short the 'Act'] is by the returned candidate against the judgment dated 31.8.2004 passed by the learned single Judge of the Bombay High Court in Election Petition No. 1 of 2002 filed by the first respondent herein. 2. Notice of Election dated 29.5.2002 was given by the Returning officer in respect of an election to be held to elect a member to the Maharashtra Legislative Council from Aurangabad Division Graduates' Constituency. As per calendar, the last date for filing nominations was 5.6.2002, the scrutiny of nomination papers was taken up on 6.6.2002 and the poll was held on 23.6.2002. The appellant, who was one of the candidates, was declared elected on 26.6.2002. On 9.8.2002, the first respondent, one of the rival candidates, filed Election Petition No. 1/2002 in the High Court of Bombay, Aurangabad Bench, challenging the election of the appellant under section 9-A, 98, 100 (1) (a) (d) and 101(1)(a) of the Act. 3. In the said election petition, the first respondent alleged that the appellant was a government contractor carrying on business under the trade name of M/s. Precision Press Fabricon at Aurangabad. He further alleged that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act would arise only if any contract entered into by him [in the course of his trade or business] with the appropriate government (State Government) for the supply of goods or for execution of any works undertaken by that government, subsisted on the date of filing of nomination/scrutiny of nominations/ declaration of results. He pointed out that the first contract had been transferred to GMIDC in the year 1998 itself, and the second and third contracts were with MJP and not with the State Government. He, therefore, contended that he had no subsisting contract with the appropriate government in June, 2002 and therefore, did not suffer disqualification under section 9-A of the Act. 5. After considering the provisions of MGMIDC Act and MJA Act, the High Court allowed the election petition by order dated 31.8.2004 and declared the election of Appellant as void. It held that GMIDC and MJP were statutory corporations wholly controlled by the State Government and therefore, fell within the expression 'State' as defined in Article 12 by applying the principles laid down by this Court in Ramana Dayaram Shetty vs. The International Airport Authority of India [AIR 1979 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right to dispute an election, though fundamental to democracy, are neither fundamental rights nor Common Law Rights, but are pure and simple statutory rights. This Court held :- Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. 9. In S. Narayanaswami vs. G. Panneerselvam [AIR 1972 SC 2284], the correctness of a decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sults. We think that, by adding a condition to be necessary or implied qualifications of a representative of the Graduates which the Constitution-makers, or, in any event the Parliament, could have easily imposed, the learned Judge had really invaded the legislative sphere. The defect, if any, in the law could be removed only by law made by Parliament. 10. In N. S. Varadachari vs. G. V. Pai [AIR 1973 SC 38], this Court held thus :- Section 8 to 10-A of the Act set out the grounds which disqualify a person from being a candidate. If a person possesses all the qualifications prescribed in the Constitution as well as in the Act and has not incurred any of the disqualifications mentioned therein then he is qualified to be a candidate. It may look anomalous that a non-graduate should be a candidate in a Graduates' Constituency. But if a candidate possesses the qualifications prescribed and has not incurred any of the disqualifications mentioned in the Constitution or in the Act other consideration becomes irrelevant. 11. A person cannot, therefore, be disqualified unless he suffers a disqualification laid down in Article 191 of the Constitution or under sections 8, 8-A, 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disqualifications under sections 8 to 10-A of the Act are clear and very specific. They do not leave any room at 'elbow joints' to widen or narrow the disqualifications. For example, section 10 of the Act disqualifies only persons who are working or functioning as managing agent, manager or secretary of a company or corporation in which the State Government has not less than twenty-five per cent shares, but does not disqualify other employees of such company or corporation. Section 9 disqualifies a person who had held an office under the Government of India or any State Government and who has been dismissed for disloyalty to the State or for corruption, but it does not disqualify a person who had held an office under a local or other authority and who has been dismissed for corruption. Similarly, all and every conviction do not lead to disqualification under Section 8. The disqualification will be attracted under section 8 only in cases where (i) the conviction is followed by sentence of not less than two years; or (ii) the conviction is for the offences enumerated in sub-section (1); or (iii) the conviction is in respect of a contravention of a law referred in sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments. In Articles 102(1)(a) and 191(1)(a) dealing with membership of either House of Parliament or State Legislature, the disqualification arises only if the person holds any office of profit under the Government of India or the Government of any State other than an office declared by Parliament or State Legislature by law not to disqualify its holder. Thus, in the case of election as President or Vice-President, the disqualification arises even if the candidate is holding an office of profit under a local or any other authority under the control of the Central Government or the State Government, whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution if the office of profit is held under a local or any other authority under the control of the Governments and not directly under any of the Governments. This clearly indicates that in the case of eligibility for election as a member of a Legislature, the holding of an office of profit under a corporate body lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islative Council, the term 'appropriate government' in section 9-A refers to and means the 'State Government'. 15. The term 'State Government' is not defined either in the Constitution of India or in the Act (that is Representation of the People Act, 1951). Clause (a) of sub-section (1) of section 2 of the Act provides that unless the context otherwise requires, each of the expressions defined in section 2 or sub-section (1) of section 27 of the Representation of the People Act, 1950, but not defined in the Act, shall have the same meaning as in that Act. Section 2(j) of the Representation of the People Act, 1950 defines State Government as follows :- 2(j). 'State Government'.- State Government in relation to Union Territory means the administration thereof. Section 2(60) of the General Clauses Act, 1897, provides that the term State Government , as respects anything done or to be done, shall mean in a State, the Governor. 16. The High Court after an exhaustive consideration of the provision of MGMIDC Act and MJA Act, and the principles laid down by this Court with reference to Article 12, has held that GMIDC and MJP answer the defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in matters of public employment under Article 16 and most importantly the right to enforce all or any of those fundamental rights against the State as defined in Article 12, either under Article 32 or Article 226 of the Constitution [vide Pradeep Kumar Biswas (supra)]. The decisions rendered under Article 12 lay down that a body would answer the definition of State under Article 12 if it is financially, functionally and administratively dominated by or under all pervasive control of the Government . On the other hand, where the control by the Government is merely regulatory, whether under any statute or otherwise, it would not serve to make the body 'State'. Thus the very decisions relied on by the High Court make it clear that 'instrumentalities of State' are different from 'State Government', though both may answer the definition of 'State' under Article 12 for the limited purpose of Part-III of the Constitution. Further, the very inclusive definition of 'State' under Article 12 by referring to Government of India, the Government of each of the States and the local and other authorities, makes it clear that a 'State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract should be entered into by him in the course of his trade or business; (iii) The contract should be entered into with the appropriate Government; (iv) The contract should subsist; (v) The contract should relate to the works undertaken by the appropriate Government; and (vi) The contract should be for execution of such works. This Court in KARTAR SINGH (supra) also clarified that : the provisions of Section 9A disqualify a citizen from contesting an election; a citizen may, therefore, be disqualified only if the facts of his case squarely fall within the conditions prescribed by Section 9A. [Emphasis supplied] 19. It is clear from section 9A of the Act that only certain type of contracts with the State Government will result in disqualification. For example subsistence of a mining lease granting by a government to the candidate to win minerals from a specified area was held not to attract section 9A in Kartar Singh Bhadana (supra). A contract for collection of tolls at a government ferry was held to be not a contract for execution of any work undertaken by the appropriate government in Dewan Joynal Abedin vs. Abdul Wazed [1988 Supp. SCC 580]. A sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 19.5.1996 with the State Government for execution of a work undertaken by the State Government, or the fact that the said contract dated 19.5.1996 was subsisting on the date of his nomination and scrutiny of nominations. What is contended is that the contract stood transferred to GMIDC in the year 1998 by virtue of the provisions of MGMIDC Act and, thereafter, the said contract ceased to be a contract with the State Government and therefore, what was subsisting in June, 2002 (at the time of filing nomination/scrutiny of nomination/declaration of result) was a contract with GMIDC and not a contract with the State Government. 23. What is relevant under section 9-A of the Act is that the contractor should have some obligations to perform towards the State Government on the relevant date. In fact, the explanation to section 9-A makes it clear that where a contractor has performed all his obligations, but the government is yet to perform its obligations (for example, where the work assigned under a work order is completed by the contractor and that is duly certified, but payment therefore is not yet made by the Government) then there is no contract 'subsisting' within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sued in its corporate name. Section 15 relates to vesting and transfer of property, assets, liabilities and obligations to the Corporation. It reads thus: 15(1). From such date as may be specified, from time to time, by the State Government (hereinafter in this section referred to as the appropriated date ), (a) the properties and assets comprising movables and immovables including Irrigation Projects, Hydro-Electric Power Projects, works under construction and management of completed schemes, specified in that behalf, situated in the area of operation of the Corporation, which immediately before the appointed date vested in the State Government and were under the control of the Irrigation Department, shall vest in and stand transferred to the Corporation and all income derived and expenses incurred in that behalf be brought on books of the Corporation; and (b) the rights, liabilities and obligations of the State Government, whether arising out of any contract or otherwise pertaining to the said projects of the State Government shall be deemed to be the rights, liabilities and obligations of its corporation. (2) Such properties, assets, rights, liabilities and oblig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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