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Judgment
S.N. Phukan, J.—The election Petitioner was a candidate in the last General Elections held in 1991 for electing members to the Assam Legislative Assembly from 96 Udalguri (S.T.) Legislative Assembly Constituency in which Respondent No. 1 was declared elected. There were as many as 7 (seven) candidates, all of whom have been made parties as Respondents. The chief Election Commissioner and the Central Observers were also made parties, but their names were struck off by order dated 26.3.93.
The Respondents No. 1 filed a petition for striking off some paragraphs of the present election petition on the grounds stated in the said petition. The matter was heard and thereafter by order dated 10.7.92 the petition was partly allowed and paragraphs 7 to 13, 17 to 23 and 25 to 28 were struck off. The surviving paragraphs were 1 to 6, 14 to 16, 18 to 20 and 24.
In paragraphs 1 to 6 general statements have been made and is not necessary to extract the contents of the said paragraphs. In paragraph 14, it has been alleged that Respondent No. 1 resorted in corrupt practice by giving bribe and distribution of liquors amongst tea garden workers and arranging feast for the tea garden labourers. According to the election Petitioner Respondent No. 1 arranged feast in Hatigarh, Majuli, Chandana and Asramore Tea Estates from the evening of 7th June till noon of 8th June. It has also been alleged that money was distributed to various groups of tea garden labourers and a specific statement has been made regarding payment of Rs. 2,500/- to the Secretary, Labour Union, Chandana Tea Estate on 7th June, 1991, to Sri Safal Kisuk of village Dhalkata Rs. 2,000/- and further to Benjamin Murmu of village Kanpur Rs. 2,000/-. According to the Petitioner, the amount was paid on 7th and 8th June.
Election Petitioner has alleged that in the return of expenditure filed by the Respondent No. 1 a sum of Rs. 24,000/- (approximately) was shown and the election Petitioner wanted to verify the expenditure but the Returning Officer who refused to supply him with a certified copy.
For the purpose of present petition, the main allegation is that at the time of filing of the nomination paper and also at the time of scrutiny, Respondent No. 1 had subsisting contract with the State Government in the Irrigation Department and as such he was disqualified u/s 9-A of the Representation of Peoples Act, 1951. This allegation has been made in paragraph 18 of the election petition which is quoted below:
That the Petitioner bags to state that the Respondent No. 1 Cong. (I) candidate is a class-1 registered Govt. contractor in Irrigation Department under the Chief Engineer, Irrigation, his registration No. being serial No. 50 for the year 1989-90. It may be stated here that the Petitioner made an application in writing to the Chief Engineer, to furnish him authenticated copies of the Registration No. of the Respondent No. 1, of the contract executed between him and the department and the subsisting interest between him and the Govt. in regard to those contracts but unfortunately the Chief Engineer expressed his inability to furnish those copies without the permission of the Govt. The Respondent No. 1 belongs to Congress party which has formed the Govt. and it is doubtful if those copies would be made available to the Petitioner to prove his disqualification. However, the Petitioner made an application on 22.7.91 before the Chief Engineer, Irrigation for the certified copies of the list of Registered contractors etc. The said Chief Engineer forwarded the Petitioner''s application to the Secretary, Irrigation Department, Govt. of Assam by his letter dated 22.7.91. The Petitioner craves indulgence of the Hon''ble Court to call for those documents even before framing of the issues as the fact of subsisting interest in the Govt. contract might itself clinch the whole issue of invalidity of the election of Respondent No. 1 on that ground alone and the court might not be required to decide other points of the petition if a preliminary issue is framed in regard to this aspect of the disqualification of the member by calling for the records mentioned hereinabove at the initial stage, the whole petition can be disposed of on the verdict on that issue. A constituted attorney is only a substitute and/or agent in a sense that he would be entitled to draw the bill etc. on behalf of the contractor/Respondent No. 1. The question of subsisting contract entered by him would thereby not be wiped out and as the maxim goes ''qui per alium facit per seipsum facers vidatur'' the constituted attorney or the delegated authority cannot escape the legal liability arising out of a contract. Copies of the letter dated 22.7.91 of the Petitioner and letter dated 22.7.91 of the Secretary are annexed hereto as Annexure-''7A'' and ''7B'' to this petition respectively.
On the above grounds, the election Petitioner has challenged the election of Respondent No. 1 from the said Constituency.
Respondent No. 1 has filed written statement. It may be stated that other Respondents did not contest the petition. All the allegations made in the election petition have been denied. Regarding allegation of corrupt practice, it has been stated that these were not sworn in the affidavit under Forum 25 of the relevant election rules. Respondent No. 1 has also denied that he took recourse to corrupt practice as alleged. It has been specifically denied that the Respondent No. 1 distributed liquor amongst the tea garden labourers and electors and arranged feast at many places. The allegation of distribution of money to the persons or electors as alleged in the petition has also been denied. It has also been stated that the return of expenditure was submitted showing the actual expenditure incurred by the Respondent No. 1. According to Respondent No. 1 as he submitted the return as per law certified copy of the return was duly refused. In paragraph 10 of the written statements the statements made in above paragraph 18 have been denied and it has also been pleaded that the said paragraph was not properly verified as required under the election law. Accordingly, it has been submitted that the statements made in the above paragraphs are not covered by the contents of the letter dated 22.7.91 (Annexure-7A and 7B of the election petition). This Court need not consider the above statements and the election Petitioner also cannot rely on these statements. It has been denied that there was a subsisting contract between him and the State Government at the relevant time. According to the Respondent No. 1 he was a registered contractor under the Irrigation Department of the Government of Assam but his registration was withdrawn by order dated 24.4.91 passed by the Chief Engineer of the said Department and consequently the Executive Engineer, Dhansiri Project Weir Division (Irrigation), Bhairabkunda by letter dated 25.4.91 informed the Petitioner about cancellation of his all subsisting contract. According to the Respondent No. 1 he was not a registered contractor and there was no subsisting contractor on the date of filing of the nomination paper and thereafter. It has also been denied that there was any violation of the provisions of Rule 56(7)(b) of the Rules of 1961.
On the pleadings the following issues were framed:
(i) Whether the statements contained in paragraphs 14, 16 and 18 sailers from any legal infirmities for defective verification and affidavits as alleged even after the disposal of the application under Order 7 Rule 11 CPC which operates as estoppel, in raising the same question again?
(ii) Whether paragraphs 14, 16, and 18 of the election petition are liable to be strucked off.
(iii) Whether affidavit in form 25 is an integral part of the election petition.
(iv) Whether contractual relationship between the Respondent No. 1 and State subsists on the date of scrutiny of the nomination papers.
It may be stated that issue No. 4 was corrected by order of this Court dated 1.4.93.
Heard Mr. S.K. Das, learned Counsel for the election Petitioner and Mr. A.M. Majumder, learned Counsel for the Respondent No. 1.
I propose to take up issue Nos. (i), (ii) and (iii) together.
The allegation of corrupt practice in an election petition is a quasi-criminal nature. In the present petition, the election Petitioner except his evidence (P.W.1) and evidence of Abu Syed Abdullah (P.W.2). no other witnesses have been examined nor any document have been proved. P.W.2 was the Chief Engineer of the Irrigation Department of the Govt. of Assam and he has been examined in connection with subsisting contract between the State Govt. and the Respondent No. 1 and therefore, his evidence is not relevant for corrupt practice.
Regarding corrupt practice, the Petitioner has stated that the Respondent No. 1 distributed money and also arranged food for the voters in the Tea Estates of Hatigarh, Majuli, Chandana and Coramore Tea Estates and these were done by the Respondent No. 1 from 7th evening till noon of 8th June. He has also stated regarding payment of Rs. 2,500/- to the Secretary of the Labour Union of Chandana Tea Estate on the night of 7th June. He has further stated that on the morning of the date of poll, Respondent No. 1 gave Rs. 2,000/- to one Safal Kisku and Rs. 2000/- to Benjamin Murmu. He has further stated that he could bring witnesses to support the above allegations provided adequate security was given by the court and that there were other witnesses who were afraid to come to court to give evidence.
It may be stated that no petition was filed either for providing police protection to any witness or to take their evidence in camera. Though the election Petitioner has stated that there were other witnesses, and they were afraid to come to give evidence, their names have not been disclosed either in evidence or in a sealed cover. On the basis of the evidence of the election Petitioner, I am unable to hold that Respondent No. I adopted corrupt practice. I may add here that Respondent No. 1 has denied the allegations not only in his written statement but in his evidence before this Court. I, therefore, hold that Respondent No. 1 did not adopt any corrupt practice forgetting him elected in the above election. Therefore, all, the issues are decided in favour of Respondent No. l and in other words, it is not necessary to consider whether paragraphs 14, 16 and 18 suffer from any legal infirmities and are liable to be struck off. It is also not necessary to consider affidavit in Form 25 is an integral part of the election petition inasmuch as in the above paragraphs only allegation is regarding corrupt practice and on facts I have held that the election Petitioner completely failed to prove any such corrupt practice.
ISSUE No. IV
The above issue is the main issue on which evidence has been adduced as well as arguments have been advanced by both the parties, I have already extracted the paragraph 18 of the election petition. I may state here that Mr. Majumder has urged that in the verification of the election petition, the election Petitioner has stated that this paragraph is based on documents furnished to different authorities mentioned in the body of the petition which the Petitioner solemnly verified. On perusal of the application, I find that the argument put forward by Mr. Majumder is correct.
In support of his submission, Mr. Majumder, has placed reliance in a decision of the Apex Court in A.K.K. Nambiar Vs. Union of India (UOI) and Another, wherein it was held that the reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the evidence of rival parties and that allegation may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. It was also held that the importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. According to their Lordships in esence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. According to Mr. Majumder the learned Counsel for the Respondent No. 1 the same principle may also be applicable in case of verification in election petition.
According to Election Law, verification is very important and in the statements made in paragraph 18 the election Petitioner has not stated in the said paragraph that there was a subsisting contract between the Respondent No. 1 and the State Government. The materials statement made in the said paragraph is that the Respondent No. 1 was a registered contractor of the Irrigation Department and that there was subsisting interest between the Government and the Respondent No. 1. In Section 9A of the Representation of Peoples Act, 1951 legislature has laid down that a person is disqualified if, and for so long as, there subsists a contract. Subsisting contract cannot be equated with the subsisting interest. According to Mr. Majumder on this ground alone this issue has to be decided in favour of the Respondent No. I inasmuch as this paragraph 18 does not indicate what was the subsisting contract between the Govt. and the Respondent No. 1 and the election Petitioner has urged before this Court for a roving enquiry which is not permissible. To my opinion, contention of the learned Counsel has considerable force.
Mr. Das, learned Counsel for the election Petitioner has urged that in the written statement, Respondent No. 1 has admitted that he was a registered contractor which was cancelled and as such the onus is on the Respondent No. 1 to prove that there was no subsisting contract. In this connection, learned Counsel has placed reliance in the decision of the Apex Court in Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, wherein it was held that the burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts and such a shifting of onus is a continuous process in the evaluation of evidence. I shall deal with the shifting of onus of proof at the appropriate place.
In reply Mr. Majumder has urged that the party cannot go beyond his pleadings and no amount of evidence can be looked into which is not pleaded. According to the learned Counsel for the election Petitioner pleadings means plaint and written statement and it will also include application for striking of pleadings. Even if I accept the contention of Mr. Das, learned Counsel for the election Petitioner, it is an established law that evidence cannot be adduced on facts which are not pleaded and the Plaintiff cannot succeed on the weakness of the case of the Defendant Similarly hold that is the election petition, the election Petitioner cannot go beyond the statements made in the election petition and as in paragraph 18 there is no mention of any subsisting contract and in fact no particular has been given regarding alleged contract between the parties, the election Petitioner cannot take advantage of the weakness of the case of the Respondent No. 1. On this ground also this issue has to be decided in favour of the Respondent No. 1.
According to Mr. Das as the Respondent No. 1 has admitted that he was a registered contractor automatically it follows that there was a subsisting contract. Mr. Majumder has urged that even if a person may be a registered contractor it would not mean that any contract was awarded to him. Contention of Mr. Majumder has considerable force.
Be that as it may, let me also examine the facts of the case without rejecting the petition on technical grounds.
As stated above, the Respondent No. 1 in his written statement has stated that his registration was withdrawn and the contract work allotted to him was cancelled before filing of the nomination by letter dated 25.4.91 issued by the Executive Engineer which has been marked as exhibit-R-l. According to Mr. Das, exhibit R-l only signature was proved but the contents of the documents have not been proved. I may state here that this document was proved through the evidence of P.W. 2 who was the Chief Engineer of the Irrigation Department. He has proved the signature in R-l of the Executive Engineer. This document was proved by the Respondent No. 1 in cross-examination. This witness has categorically stated that exhibit-R-1 was the letter issued by the Executive Engineer and R-1(1) was the signature of the Executive Engineer. He was re-examined by the counsel for the Petitioner and in re-examination he has stated regarding name of the project for which the contract was awarded. He has also stated that he could not say whether the work mentioned in exbibit-R-1 was completed or not and that be did not know what happened to the security money. After exhibit R-1 was issued and that from the said letter, exhibit-R-1 it appears that at the time of issuance of the said letter work was not completed and the balance of the work was completed either by the Department or through any other agency. Therefore, it cannot be said that the submission of the learned Counsel for the Petitioner that contents of the said letter, exhibit R-1 was not proved is correct inasmuch as the learned Counsel has on reexamination brought out the contents of the letter. Mr. Majumdar has also urged that the letter was marked as exhibit-R-1 and signature was marked as R-1(l) and therefore, exhibit-R-1 was duly proved. From the above facts, I am constrained to hold that the exhibit-R-1 was duly proved and therefore, the contention of Mr. Das that this letter was not proved has no force.
I may state here that the Respondent filed a cyclostyled copy in Assamese issued by the Chief Engineer cancelling the registration of Respondent No. 1 as a contractor and that there was no dues payable between the Respondent No. 1 and the State Government. This document was marked as Z as it was not proved by either producing the original or by examining the then Chief Engineer Mr. Mukherjee.
I may state here that Mr. Das has placed reliance in various decisions of the Apex Court and this Court reported in Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import, in support of his contention that mere proof of handwriting of the document or signature of the executant would not tantamount to prove all the contents or facts stated in the document. As I have already held that by re-examining P.W. 2, the Petitioner himself has proved the contents of the document, I need not consider the ratio laid down in the above decisions.
According to Mr. Das admission in the pleadings or judicial admission admissible u/s 58 of the Evidence Act made by the parties of their agents at or before hearing of the case stand on a higher footing than evidentiary admission and in this connection, learned Counsel has placed reliance in two decisions of the Apex Court, namely, Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati, and Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, According to Mr. Das as the Respondent No. 1 has admitted in the written statements that he was a registered contractor and that contracts were allotted to him and subsequently cancelled by the letter, exhibit R-l is an admission and onus is on the Respondent to prove that it was so cancelled. According to Mr. Das the letter marked, exhibit-R-1 is not complete to show that the contract was cancelled inasmuch as the Respondent No. 1 has not produced his letter to the Chief Engineer requesting him to cancel his registration and also the contract and that apart the documents marked Z by which legislation was cancelled has not been proved. In other words according to the learned Counsel, no document has been proved to show that there was no subsisting contract at the time of fling of nomination paper or at the time of scrutiny.
Mr. Majumdar has urged that in paragraph 18 of the petition reliance has been placed on two documents annexed as Annexures-7 and 7A, but these documents have not been proved. Mr. Majumdar has further urged that the above documents would not show that there was any subsisting contract between the Respondent No. 1 and the State Government.
On behalf of the election Petitioner neither any witness has been examined, nor any document has been proved to show that there was subsisting contract. On the other hand Respondent No. 1 has stated on oath that he applied for cancellation of his registration which was granted and also for cancellation of contract which was granted by letter marked exhibit R-l. Exhibit R-l clearly stated that as a result of the withdrawal of registration of a Class-1 contractor of the Irrigation Department, Respondent No. 1 ceased to be a contractor of the Department and he was also informed that works (i) construction of main cannel from Ch. 55 ''to 92'' of Dhansiri Project under C.E''s agreement No. 40 of C.E. (1) 1987-88, and (ii) construction of main cannel from Ch. 9866 M to 9876 M of Dhansiri Irrigation Project under tender No. 14 of C.E. (1). 1986-87 under the Division automatically stands cancelled, with effect from the date of withdrawal of registration i.e. from 24th April, 1991. It was also stated in the said letter, exhibit-R-1 addressed to the Respondent No. 1 that the balance work if arty will be executed by the Department or through other agency. Therefore, the Respondent No. 1 has proved that the contract was cancelled and as such there was no subsisting contract when the nomination paper was riled.
Mr. Das has heavily relied on the decision of the Apex Court in S. Munishamappa Vs. B. Venkatarayappa and others, Relying on the above decision Mr. Das has urged that a contract to come an end by following modes:
(i) By performance;
(ii) By express agreement;
(iii) Under the doctrine of frustration; and
(iv) By breach.
According to Mr. Das in the case in hand, the contract did not come to an end by any one of the above modes. I am, unable to accept the contention of Mr. Das inasmuch as in view of the letter marked exhibit R-l the present contract has come to an end by an agreement between the parties. I may add here that in that case the candidate who was declared elected bad a contract with the Government and by a letter he requested the Public Works Department to cancel the work as he wanted to contest the election. On this fact, the Apex Court held that there was no subsisting contract and that even if the contract had cot been terminated by the parties themselves it must be held that it come to an end by breach in view of the above letter. But in the present case the contract come to an end by an agreement between the parties inasmuch as the contract was cancelled at the request of the Respondent No. 1 by the Executive Engineer by hit letter marked exhibit R-1. This letter would also show that earlier the Chief Engineer cancelled the registration of the Respondent No. 1.
For the reasons stated above, the issue is decided in favour of the Respondent No. 1 and against the election Petitioner.
In the result, the petition is dismissed with cost of Rs. 1,000/-.
Office shall communicate immediately the judgment and order to the Election Commission and the Speaker, Assam Legislative Assembly as provided u/s 10 of the Representation of the People Act, 1951.