TaxTMI 
TaxTMI 
2006 (1) TMI 595
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....002 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 had entered into three contracts with the State Government, in the course of his business for execution of works undertaken by the appropriate Government, and such contracts were subsisting, on the date of filing of nomination/scrutiny of the nomination papers/declaration of result [in June, 2002]. The said contracts were : a) Contract as per work order dated 19.5.1996 issued by the Executive Engineer, Medium Project Irrigation Division, Latur, for the work of designing, fabricating, and erecting the Automatic stilt doors at the canal of Tawarja Project. b) Contract as per work order dated 31.12.1998 issued by the Executive Engineer, Maharashtra Jeevan Pradhikaran, Works Division No.2, Latur, for execution of the work relating to water supply scheme in ten villages surrounding Pangaon. c....
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....ted 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 1628]; Ajay Hasia Vs. Khalid Mujib Sehravardi [1981 (1) SCC 722]; The Mysore Paper Mills Ltd. Vs. The Mysore Paper Mills Officers Association & Anr. [2002 (2) SCC 167]; and Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology & Ors. [2002 (5) SCC 111]. The High Court also held that GMIDC and MJP being 'State' under Article 12, they are the same as being 'State Government' and therefore, GMIDC and MJP can be termed as 'appropriate Government'. Consequently, the High Court held that the Appellant had subsisting contracts with the appropriate government and therefore, incurred disqualification under section 9-A of the Act. 6. Feeling aggrieved, the appellant has filed this appeal. On the contentions raised, the following questions arise for consideration: i) Whether a statutory....
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....rt 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 Madras High Court which held that a non-graduate was not qualified to be a candidate for election to the Graduates' Constituency, (though the Constitution or any law made by the Parliament did not prescribe graduation as a qualification for election to Graduate's constituency), fell for consideration of this Court. A Constitution Bench of this Court reversed the decision of the High Court, on the following reasoning: "It could not even be said that qualifications of the electors as well as of those to be elected were not matters to which the attention of the law makers, both in the Constituent Assembly and in Parliament, was not specially directed at all or that the omission must be by mere oversight. The provisions discussed above demonstrate amply how legislative attention was paid to the qualifications of the electo....
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....uency. 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, 9-A, 10 or 10-A of the Act. It is not possible to add to or subtract from the disqualifications, either on the ground of convenience, or on the grounds of equity or logic or perceived legislative intention. A combined reading of Article 191 of the Constitution of India and Chapter III of the Representation of the People Act, 1951 makes it clear that a person can be held to be disqualified for being chosen as, and for being, a Member of the Legislative Assembly or Legislative Council of a State only on the following, and no other, grounds : Disqualifications under the Constitution of India : i) If he holds any office of profit under the Government of India or the Government of any State [specified in the First Schedule], other than an office declared by the Legislature of the State by law not to disqualify its holder  ....
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....n 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 (2) and the sentence is not less than six months. Section 9-A only disqualifies person having a subsisting contract with the State Government either for supply of goods or for execution of any works undertaken by that government, but does not disqualify persons who have such contracts with any local or other authority nor disqualifies persons having subsisting contracts with the State Government if such contracts are not for supply of goods or for execution of any works undertaken by the State Government. 13. At this juncture, it is of some relevance to notice the distinction between Articles 102(1)(a) and 191(1)(a) which deal with disqualification for membership of Houses of Parliament and the membership of the State Legislative Assembly/Council on the one hand and....
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....lection 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 like a local authority does not bring about disqualification even if that local authority be under the control of the Government. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification comes into existence for being elected as the President or the Vice-President." (Emphasis supplied) The above brings into focus that 'State Government' is different from 'local or other authorities under the control of the State Government' for purposes of disqualification. 14. We will not deal with the disqualification prescribed un....
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....hereof." 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 definition of "State" under Article 12 of the Constitution. This is not seriously disputed by the Appellant. Having reached the conclusion that both GMIDC and MJP answer the definition of State under Article 12, the High Court wrongly and if we may say so, without any logical basis, assumed that they are 'appropriate government' and consequently, the appellant who had subsisting contracts with GMIDC and MJP incurred disqualification under section 9-A of the Act. Neither Article 12 nor the decisions rendered with reference to Article 12 is of any assistance for interpreting Section 9A of the Act. The term 'State Government' (as also the term 'Central Government') is used in the various provisions relating to disqualification, in contradistinction from its instrumentalities or l....
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.... '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' and a local or other authorities, are different and that they fall under a common definition only for the purpose of Part-III of the Constitution. This Court has consistently refused to apply the enlarged definition of 'State' given in Part-III (and Part-IV) of the Constitution, for interpreting the words 'State' or 'State Government' occurring in other parts of the Constitution. While the term "State" may include a State Government as also statutory or other authorities for the purposes of part-III (or Part- IV) of the Constitution, the term "State Government" in its ordinary sense does not encompass in its fold either a local or statutory authority. It follows, therefore, that though GMIDC and MJP may fall within the scope of 'State' for purposes of Part-III of....
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....e 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 subsisting contract for sale of liquor with the appropriate government was held to be not a contract falling under section 9A in Ranjeet Singh vs. Harmohinder Singh Pradhan [1999 (4) SCC 517]. In Ranjeet Singh (supra), this Court reiterated the following observations in Ram Padarath Mahto v. Mishri Sinha (AIR 1961 SC 480) :- ".......section 9-A is a statutory provision which imposes a disqualification on a citizen. It would, therefore, be unreasonable to take a general or broad view, ignoring the essentials of the section and the intention of the legislature. Purposive interpretation is necessary." 20. Therefore, when section 9-A provides that subsistence of a contract with the appropriate government (either for supply of goods or for execution of any work undertaken by that government) will disqualify a candidate for be....
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....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 meaning of section 9-A of the Act. 24. A contract subsists till the rights and obligations thereunder are finally performed. The general rule is that though an employer may assign the benefits and obligations of a contract to an assignee, he will not be relieved of his obligations towards the contractor, unless the contractor is also a party to the assignment, in which event there is an assignment coupled with novation, (a new contract between the assignee and the contractor). But the exception to this general rule is where a statute vests certain assets of the State in a statutory corporation (or Government Company or other specified person) and provides that as a consequence, the rights and obligations of the State relating to such assets shall stand transferred to such statutory corporation (or Government Company or specifie....
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....n 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 obligations shall be valued in such manner as the State Government may determine. (3) All suits and other legal proceedings with respect to any scheme for the development of Irrigation Projects and Hydro-Electric power Projects vested in the Corporation, under sub-section (1), instituted against or defended by the State Government before the appointed date may be continued, or defended by or against, the Corporation." The projects that stood transferred to and vested in GMIDC from the State Government are described in the Schedule to the Act, namely, "all completed, on-going and major, medium and minor irrigation projects within the area of operation of the Corporation (excluding Bhandaradara Hydro-Electric Power Project and Ghatgar Hydro-Electric Power Projects)" in the districts of Aurangabad, Jaina, Parbharri, Beed, Usmanabad, Latur, Nanded....