1987 (12) TMI 338 - SC - Indian Laws

Supreme Court upholds eligibility of election candidate, annuls appellant's election; parties to bear own costs.

Dewan Joynal Abedin Versus Abdul Wazed and Ors.

Dewan Joynal Abedin Versus Abdul Wazed and Ors. - [1988] 2 SCR 370 Issues Involved:1. Age qualification of the 1st respondent.2. Disqualification under Section 9-A of the Representation of the People Act, 1951.3. Disqualification under Article 191(1)(a) of the Constitution for holding an office of profit.Issue-wise Detailed Analysis:1. Age Qualification of the 1st Respondent:The primary issue was whether the 1st respondent had completed the age of 25 years on the last date for filing nominations. The High Court examined the evidence, including the Electoral Roll and the High School Leaving Certificate, which indicated that the 1st respondent was above 25 years of age. Witnesses P.W.2 Aripulla, P.W.3 Sirajul Islam, and P.W.6 Habibar Rahman corroborated this. The High Court concluded that the 1st respondent had indeed completed the age of 25 years on the date of scrutiny. The Supreme Court agreed with this finding, stating, 'We are of the view that the High Court was right in upholding that the 1st respondent was more than 25 years of age on the date of scrutiny and he was eligible to be a member of the Legislative Assembly.'2. Disqualification under Section 9-A of the Representation of the People Act, 1951:The second issue was whether the 1st respondent was disqualified due to a subsisting contract with the Government of Assam. Section 9-A disqualifies a person if there is a subsisting contract for the supply of goods to or for the execution of any works undertaken by the Government. The 1st respondent had a lease to collect tolls at a public ferry, which he claimed was terminated before the date of scrutiny. The High Court found that the contract was terminated on 21.11.1985, before the scrutiny date. The Supreme Court further analyzed whether the lease to collect tolls constituted a contract for the execution of any works. It concluded that the lease did not fall under Section 9-A, as the contract was not for the execution of any works undertaken by the Government. The Court stated, 'The word 'works' in the expression in 'execution of any works' appearing in Section 9-A of the Act is used in the sense of 'projects', 'schemes', 'plants', such as building works, irrigation works, defense works etc.' Thus, the 1st respondent was not disqualified under Section 9-A.3. Disqualification under Article 191(1)(a) of the Constitution for Holding an Office of Profit:The third issue was whether the 1st respondent held an office of profit under the State Government by virtue of being a lessee of the right to collect tolls. The appellant argued that the 1st respondent held an office of profit. The Supreme Court rejected this argument, stating, 'An 'office' means a public or private employment with certain duties to be performed.' The Court found that the 1st respondent's lease to collect tolls was a business contract, not an office of profit. The Court elaborated, 'A lessee of tolls under the Ferries Act is only a contractor who under the lease acquires the right to collect whatever toll is paid by persons who use the ferry against payment to Government in advance whatever amount he had agreed to pay at the time of auction.' Therefore, the 1st respondent was not holding an office of profit.Conclusion:The Supreme Court upheld the High Court's decision, finding that the 1st respondent was eligible to contest the election as he had completed the age of 25 years, was not disqualified under Section 9-A of the Representation of the People Act, and did not hold an office of profit under Article 191(1)(a) of the Constitution. Consequently, the rejection of his nomination papers was improper, and the election of the appellant was rightly set aside. The appeal was dismissed, with each party bearing its own costs.