TMI Blog1954 (2) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... te caste in itself The contention was that when Gangaram Thaware joined the Panth he ceased to be a member of the Mahar caste' The objection succeeded and his nomination was rejected. The nomination of another Scheduled Caste candidate was also rejected and five others were withdrawn before the election, among them was the present petitioner. That left six candidates of whom three were eligible for the reserved seat. The two who were elected were Tularam Sakhare, for the Scheduled Caste seat, and chaturbhuj, Jasani, nor the general seat. Jasani's election was challenged on the ground that he was subject to the disqualifications set out in section 7 (d) of the Representation of the People Act (Act XLIII of 1951) as he was interested in a contract for the supply of goods to the Central Government. The Election Tribunal held that the rejection of Gangaram Thaware's nomination was improper as he continued to be a member of the Mahar caste despite his conversion to the tenets of the Mahanubhava. Panth. It also held that Chaturbhuj Jasani had a contract with the Central Government, so he was disqualified. Accordingly it set aside the whole election. We will deal with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be governed by the terms set out in the letters but until an order was placed and accepted there was no contract. Also, each separate order and acceptance constituted a different and distinct contract: see Rose and Frank Co. v. J. R. Crompton Bros. Ltd [1925] A.C. 445The crucial dates with which we are concerned are 15th November, 1951, the last date for putting in the nominations, and 14th February, 1952, the date on which the results were declared. The section runs-- A person shall be disqualified for being chosen as...... The words which follow, and for being , need not be considered as it is enough for our purposes to use only the former. Now the words of the section are shall be disqualified for being chosen. The choice is made by a series of steps starting with the nomination and ending with the announcement of the election. It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen. The disqualification alleged in this case is that Chaturbhuj Jasani had an interest in a contract, or a series of contracts, for the supply of goods to the Central Government. He had this interest because the contracts were made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51 8,411-14-013- 3-1952 9- 1-1952 16- 1-1952 5,888- 4-9 do 23- 1-1952 28- 1-1952 8,411-,14-020- 3-1952 This statement reveals that various contracts aggregating ₹ 15,39,345-6-0 less some small sums for railway freight, were outstanding at one time or another between the two crucial dates and that payments in discharge of these liabilities were made at various dates between 15th November, 1951, and 20th March, 1952. It also shows that orders were placed and accepted for goods priced at ₹ 84,659-14-3 before 15th November, 1951, and that payment was not made till after that date. Therefore, on 15th November, 1951, goods worth ₹ 84,659-14-3 had still to be paid for. Then between 15th November, 1951, and 14th. February, 1952, further orders for goods valued at ₹ 39,695-8-9 were placed And accepted and they were not paid for till after 14th February, 1952. It was argued that there is nothing to show that. the goods were, not supplied before 15th November, 1951, and befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Company's letter of 24th April, 1951, shows that their complaint was that the Canteen Stores did not keep a sufficient stock of bidis on hand. They said- We feel that you can stock more of our bidis. And that will mean an added profit to you; since the rebate you get on supplies made under the Direct Supply System is ₹ 4 only, whereas on supplies made to you we have now offered a much higher rebate. We have therefore to request you to kindly 8stock more of our bidis. In view of this, two representatives of Moolji Sicka Company, met the Chairman of the Board of Administration, who was in charge of the Canteen Stores Department, on 10th July, 1951. They reached certain tentative conclusions which were reduced to writing by the Canteen Stores on 11th July, 1951. Their letter of that date shows that the Canteen Stores proposed to abolish the Direct Supply System in the near future but so far as Moolji Sicka Company were. concerned they said that the system could be abolished. at once ( forthwith is the word used) provided Moolji Sicka Company would agree to supply bidis for the Bombay, Calcutta and Delhi Depots of the Canteen Stores under a new system whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... six months' time. (3) They said- And for this purpose we have agreed to offer you ₹ 7,500 in full and final settlement of all your claims to date and upon the understanding of your acceptance of the terms for future business. They concluded- Upon receiving your confirmation we shall instruct our Bombay office to send you the cheque for the amount stated above. The ₹ 7,500 was what the Canteen Stores claimed from Moolji Sicka Company as compensation for breach of the agreement under which Moolji Sicka Company had agreed not to sell to the Canteen Contractors without paying the Canteen Stores a commission. Neither side was able to produce exact figures but this was the estimate made by the Canteen Stores of the loss suffered by them by reason of that breach. It will be seen that the proposal about the Consignment System which the Canteen Stores made was that they would pay Moolji Sicka Company only when they sold the stocks with which Moolji Sicka Company were to supply them for stocking their depots at Calcutta, Bombay and Delhi. Moolji Sicka Company were not satisfied with this and said that the Canteen Stores must either ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tractors long enough to sell and hence our depots will always be,, anxious to return these stocks. The result will be obvious. Your sales will be, lower. They continue- We therefore consider that the period of six months should be the least before the expiry of which goods may be taken back by you and replaced. The period of three months within which you expect us to return your stocks, should we find them not moving, will be too short. They conclude by saying that they hope Moolji Sicka Company will agree to the six months. Now it will be seen that all this correspondence related to the proposals about the Consignment System which were first mooted on 11th July, 1951. Moolji Sicka Company complained on 24th April, 1951, that the Canteen Stores were not keeping large enough stocks of their bidis and they asked the Canteen Stores to stop the Direct Supply System and purchase stocks direct. The Canteen Stores were naturally reluctant to keep large stocks on hand because bidis 'deteriorate and become unsaleable in course of time. Therefore they proposed the pay as we sell system, that is, they would keep stocks of bidis and pay for whatever they sold. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection and at the same time satisfy both sides. It all ended by Moolji Sicka Company accepting the terms set out in the letter of 31st July, 1951. We are accordingly of opinion, that Moolji Sick Company accepted- the Consignment System on 9th August, 1951. That imported a pay as we sell arrangement with an obligation to take back stocks unsold within six months and replace them with fresh stocks which would be paid for when sold. in the transition period the Direct Supply System was also to continue. That meant that there would be two systems in force for a time in certain depots: the Consignment System regarding stocks ordered for the stocking up of the Calcutta, Bombay and Delhi depots of the Canteen Stores and the Direct Supply System till such time as the depots were stocked. The third system of Outright Purchase was limited for the time being to the Pathankot and Srinagar depots. Both the Direct Supply and the Consignment systems were abolished together on list November, 1951 (see the Canteen Stores' letter dated 24th November, 1951). But the obligation to take back unsold stocks within the six months' period continued to attach to all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disregarded and it be assumed that Moolji Sicka Company had fully performed their part of the contract by placing the goods on rails before 15th November, 1951, we are of opinion that the contracts were not at an end until the vendors were paid and the contracts were fully discharged. The words of the sections are if...... he has any share or interest in a contract for the supply of goods to......... the appropriate Government. There can be no doubt that these various transactions were contracts and there can equally be no doubt that they were contracts for the supply of the goods. Whether they were contracts for the supply of goods to the Government is a matter which we shall deal with presently. But we have no doubt that they were contracts for the supply of goods. The question then is, does a contract for the supply of goods terminate when the goods are supplied or does it continue in being till payment is made and the contract is fully discharged by performance on both sides 9 We are of opinion that it continues in being till it is fully discharged by performance on both sides. It was contended, on the strength. of certain observations in some English cases, that the mom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Cox v. Truscott I.L.R. 11 Lah. 375is nearer the language of our Act. He hesitatingly proceeded on the debtor and creditor basis. We need not go further than this because, as we have said, if these decisions cannot be distinguished, then we must with respect differ. We hold therefore that these contracts which Moolji Sicka Company had entered into with the Government subsisted on 15th November, 1951, and on 14th February, 1952, and that as Chatturbhuj Jasani, the appellant, was a partner in the firm he also had both a share and an interest in them on the crucial dates. That brings us to article 299 (1) of the Constitution. It states:- All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President ... and all such contracts... made in the exercise of that power shall be executed on behalf of the President ... by such persons and in such manner as he may direct or authorise. The contention was that as these contracts were not expressed to be made by the President they are void. Cages were cited tons under the Government of India Acts of 1919 and 1935. Certain sections in these Acts were said to be similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause, so we are unable to apply the same reasoning here. In our opinion, this is a type of contract to which section 236(3) of the Indian Contract Act would apply. This view obviates the inconvenience and injustice to innocent persons which the Federal Court felt in J. K. Gas Plant Manufacturing Co., Ltd. v. The King. Emperor [1947] F.C.R. 141 at 156, 157, and at the same time protects Government. We feel that some reasonable meaning must be attached to article 299(1). We do not think the provisions were inserted for the sake of mere form. We feel they are there to safeguard Government against unauthorised contracts. If in fact a contract is unauthorised or in excess of authority it is right that Government should be safeguarded. On the other hand, an officer entering into a contract on behalf of Government can always safeguard himself by having recourse to the proper form. In between is a large class of contracts, probably by far the greatest in numbers, which, though authorised, are for one reason or other not in proper form. It is only right that an innocent contracting party should not suffer because of this and if there is no other defect or objection we have no doubt Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is just as great when there is likely to be some difficulty in recovering the money from Government (for example, if Government were to choose not to ratify the contracts) as when there is none. In our opinion, the Election Tribunal was-right in disqualifying Chatturbhuj Jasani. We now turn to Gangaram Thaware. He stood as a Scheduled Caste candidate and his nomination was rejected on the ground that he did not belong to the Scheduled Caste in question, namely the Mahars. The only question here is whether he ceased to be a Mahar when he joined the Mahanubhava Panth. This gave rise to much controversy and we have been presented with many conflicting opinions. Thus, the Imperial Gazetteer of India, Voluime XXI, page 3012 states that the founder of the sect repudiated the caste system as also a multiplicity of God7f3 and insisted on the monotheistic principle. At the same time it ,says that he taught his disciples to eat with none but the initiated and to break off all former ties of caste and religion. Russell in Volume IV of his Tribes and Castes of the Central Provinces says that the Manbhaos (Mahanubhau) is a religious sect,or order which has now (1911) become a caste. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free to ostracise and outcaste the convert from its fold if he does not adhere to its tenets, but it can hardly claim the right to interfere in matters, which concern the political rights of the old body when neither the dld body nor the convert is seeking either legal or political favours from the new as opposed to purely spiritual advantage. On the other hand, if the convert has shown by his conduct and dealings that his break from the old order is so complete and final that he no longer regards himself as a member of the old body and there is no reconversion and readmittance to the old fold, it would be wrong to hold that he can nevertheless claim temporal privileges and political advantages which are special to the old order. In our opinion, broadly speaking, the principles laid down by the Privy Council in the case of a Hindu convert to Christianity apply here: not, of course, the details of the decision but the broad underlying principle. In Abraham v. Abraham(1), their Lordships say:- He (the convert) may renounce the old law by which he was bound, as he has renounced his old religion, or, if -he thinks fit, he may abide by the old law, notwithstanding he has re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in which any person who has joined this sect from the Mahar community has ever been outcasted from the Mahars for that reason; and as the sect is said to be over 1000 years old, therehas been time enough for such instances to accumulate. Further, no instance has been produced of a Mahanubhava marrying outside his or her old caste whereas there are instances of Mahanubhavas who have married non-Mahanubhavas belonging to their own caste. Nene (P. W. 1), Sadasheo (P. W. 3), Sitaram (P. W. 4) and Haridas (P. W. 5) say that a Mahar 'convert does not lose his caste on conversion. He is admitted to all caste functions and can marry in the community. Of these, Sadasheo (P. W. 3) and Haridas (P. W. 5) are Mahars. There is no evidence to rebut this. The witnesses on the other side take refuge in theory and, when confronted with actual facts, evade the issue by saying that Mahanubhavas who do these things are not real Mahanubhavas. Harendra (R. W. 1) is a Mahanubhava Guru and so ought to know, but he affects an otherworldly indifference-to mundane affairs and says that as he does not lead a worldly life he does not know whether converts retain their caste distinctions and whether ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
