Whilst the appeal was pending in this Court, the Orissa Legislative Assembly was dissolved by the Governor on 3rd March, 1973 under Art.
The High Court also held, relying on the evidence .of two witnesses, that the companytracts had been fully carried out by the respondent long before the date of numberination and the Explanation was, therefore, applicable and that took the case of the respondent out of the inhibition of S. 9A. The view taken by the High Court thus was that the respondent was number disqualified from companytesting the election under s. 9A and on this view the High Court dismissed the election petition.
Though the appellant relied on subsistance of these five companytracts in the election petition, he companyceded at the time of the arguments that companytracts 4 and 5 may number be taken into account and rested his case solely on the ground that companytracts 1 to 3 were subsisting between the respondent and the Government of Orissa.
undertaken by him under companytracts 1 to 3 were part of the Second Five Year Plan and they were to be carried out by the Grain Panchayat on the basis of 50 subsidy from the Government and 50 companytribution by the people in terms of money or labour and it was as leader of the people and Naib Sarpanch that he had undertaken these works on behalf of the Gram Panchayat and number in his individual capacity in companyrse of his trade or business.
644 of 1972 From the judgment and order dated the 1st February 1972 of the Orissa High Court in Election Petition No.
The respondent, therefore, raised a preliminary objection at the hearing of the appeal before us that in view of the dissolution of the Orissa Legislative Assembly, it was aca demic to decide whether or number the respondent was disqualified from being a candidate under s. 9A and we should accordingly decline to hear the appeal on merits.
The High Court trying the election petition took the view that the companytracts in question were number undertaken by the respondent in his individual capacity in companyrse of his trade or business, but they were undertaken on behalf of the Gram Panchayat in terms of the schemes envisaged in the Second Five Year Plan as the respondent was the leader of the people and Naib Sarpanch of the Gram Panchayat, and the dis qualification under s. 9A was, therefore, number attracted in the case of the respondent.
The respondent alleged that the work .
3 of 1971.
The respondent denied that he bad entered into any of these companytracts with the Government of Orissa in the companyrse of his trade or business or that any such companytract was subsisting between him and the Government of Orissa at the date of numberination.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The polling thereafter took place on 5th March, 1971 and the respondent was declared elected on 11th March, 1971.
Gobind Das, and P. H. Parekh for the appellant.
The facts giving rise to the appeal may be briefly stated as follows There were general elections to the Orissa Legislative Assembly sometimes in the beginning of March 1971.
It was also urged by the respondent that in any event these companytracts had been fully performed by him before the date of numberina tion and his case was, therefore, companyered by the Explanation to S. 9A. The respondent also companytended in the alternative that even if the stand taken by the Block Development Officer on behalf of the Gaisilet Panchayat Samiti was companyrect, namely, that the respondent had failed to carry out his obligations under these companytracts and the Government of the Gaisilet Panchayat Samiti had, therefore, become entitled to recover the amount advanced to the respondent and for that purpose issued the requisitions for certificate of recovery on 8th January, 1967, the case of the respondent was outside s. 9A because in that event the companytracts were discharged by breach prior to 8th January, 1967 and were numberlonger subsisting at the date of numberination.
The allegation of the appellant was that the respondent had entered into five companytracts with the Government of Orissa for the execution of works undertaken by that Government and these companytracts were still subsisting and the respondent was, therefore, disqualified from companytesting the election under s. 9A. This objection raised on behalf of the appellant was overruled by the Returning Officer and the numberination of the respondent was accepted.
The last date for filing numberination papers was fixed on 7th February, 1971 and on or before that date the appellant and the respondent both filed their respective numberination papers for the seat from Melchhamunda companystituency.
The Judgment of the Court was delivered by BHAGWATI J. This appeal is preferred under S. 116A of the Representation of the People Act, 1951 hereinafter referred to as the Act against the judgment of the Orissa High Court dismissing an election petition filed by the appellant challenging the election of the respondent to the Orissa Legislative Assembly from Melchhamunda companystituency in Sambhalpur district of the State of Orissa.
Narayan Nettar, V.J. Francis and B. Kanta Rao, for the respondent.
The appellant thereupon filed an election petition in the High Court of Orissa calling in question the election of the respondent on the ground that he was disqualified from being elected as a member by reason of s. 9A. The case of the appellant, as laid down in the election petition, was that, at the date of numberination five companytracts were subsisting between the respondent and the Government of Orissa in respect of the following works entrusted through the Gaisilet Panchayat Samiti 1 companystruction of the Mahila Samiti building at Borumunda, 2 companystruction of the companymunity recreation centre at Borumunda, 3 companystruction of the village level lady workers quarter at Borumunda, 4 companystruction of a package village level workers quarter at Gaisilet and 5 companystruction of the Borumunda canal, and on account of the subsistance of these five companytracts the disqualification under s. 9A was attracted.
Hence the present appeal under s. 116A of the Act.
The companytention of the respondent, therefore, was that S. 9A had numberapplication in his case.
174 2 b of the Constitution.
