SHAH J - (1.) AT the last general elections the appellant ATam Das was elected to the Lok Sabha from the Morena Reserved Constituency No. 1. The respondent filed an election petition challenging the election of the appellant on the ground that the latter was not qualified to stand as a candidate for election in that he had a subsisting contract for execution of works undertaken by him in the course of his business as a building contractor with the Central Government on the date on which the nomination paper was filed and when he was declared elected. The High Court of Madhya Pradesh upheld the contention and set aside the election.
(2.) THE appellant is a building contractor and his name stood entered in the list of approved contractors of the Central Government. On February 25, 1954 the appellant entered into a contract for "repairing work of Ratnawali Burj, Raisen Fort" with the Department of Archaeology, Government of India, at Bhopal. THE total value of the contract was Its. 37,012. THE appellant deposited a sum of Rs. 1,850 as security deposit for due performance of the contract. THE work under the contract was not completed within the period of three months stipulated for completion. For the work done by the appellant till March 31, 1956 he was paid Rs. 27,656-9-0. THE record is silent as to whether any work was done by the appellant in pursuance of the contract after March 31, 1956. In the petition it was averred in paragraph 9 that the contract of the appellant with the Central Government dated February 25, 1954 "subsists and exists at present." In reply the appellant denied the plea and asserted that he had not suffered any disqualification. THE appellant stated before the Court that he did not execute any work in connection with Ratna- wali Burj after he completed its work in 1956. THE appellant admitted that no payment in addition to the payment made till March 31,1956, was made, or that the account was otherwise settled. He admitted also that he had not completed the work within the stipulated period. The High Court held that there was no evidence that the contract which was not completed by the appellant was abandoned by implied arrangement, or was discharged by any action on the part of the Central Government. The High Court in paragraph 33 of their judgment summarised the conclusion as follows:- "----it must be held that the (appellant) did not fully perform the contract in question (repairing work of 'Ratnawali Burj' Raisen Fort) entered into by him on 25th February 1954 till today and that the same has not been terminated or discharged in any of the manners known to law. I, therefore, hold that the said contract subsisted on the date of the filing of the nomination paper on 19th January 1967 and its scrutiny and also on 23rd February 1967 when the election result of the constituency in question was declared. In fact it subsists even today." Correctness of that view is challenged in this appeal. Section 7 (d) of the Representation of the People Act, 1951, defined "disqualified" as meaning "disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State". A person is disqualified by section 9-A from being a member of the Legislature so long as there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to or for the execution of any work undertaken by that Government. The appellant did enter into a contract on February 25, 1954 for "repairing work of Ratnawali Burj, Raisen Fort" with the Central Government and the work undertaken by him was not completed till March 31,1956. But from that circumstance alone an inference does not arise that there subsisted a contract at the date of filling of the nomination paper of the appellant so as to disqualify him from being elected a member of the Parliament. The respondent however relied upon evidence documentary and oral in support of the plea that the contract dated February 25, 1954, remained subsisting till the relevant dates. On June 20, 1957 a letter was addressed to the Director- General of Archaeology in India, New Delhi by the Superintendent of Archaeology, Central Circle, Bhopal, in which it was complained that the work undertaken by the appellant was incomplete and was found to be defective and in viev of the adverse comments made by the Archaeological Engineer the work was discontinued and was still incomplete. On December 13, 1957 a circular was addressed by the Director-General of Archaeology in India, New Delhi, to all Circle Superintendents in which it was stated in paragraph 5 that in view of certain circumstances stated therein from the next financial year all works will be executed departmentally except (i) original works when departmental staff are not readily available; (ii) supply of material where necessary; and (iii) very exceptional cases of repairs to monuments where the Director- General is personally satisfied that it is in the interest of the Department that the work should be executed through contract. On July 23, 1958 the Director-General of Archaeology in India in a letter addressed to the Superintendent, Department of Archaeology, Central Circle, Bhopal stated that "a joint inspection of the work of Atamdas contractor (appellant) at the Ratnawali Burj at Raisen in the company of Archaeological Engineer and yourself has led me to believe that the following course of action should be taken in the matter." In paragraphs 2 and 3 on the letter which are important, it is stated:- "(2) The contractor should be told categorically that he is not to proceed with the work. (3) The remaining part of the work which may include the heightening of the Burj by not more than 2 ft. filling up its interior and rendering its top water-tight may be done by departmental labour."
(3.) THE appellant wrote a letter to the Superintendent, Archaeological Department on August 27, 1959 in reply to a letter dated August 11, 1959 that a part of the work entrusted to him had been done departmentally and that so far as the defects pointed out in the work done by him were concerned the work was done in the presence of and according to the instructions given to him by the person authorised by the Department and that a contractor who worked according to instructions would be in a position of difficulty when he was told afterwards that the work was defective when it was in truth "due to the defects of official". He then stated:- "My work was all along being inspected and approved and after a long time it is being declared defective due to defects of the work done departmentally. I want with all sincerity to finish the said work as early as possible but for doing it following essentials to be complied with:" On the record there is no correspondence after that letter which has a bearing on the completion of the contract or its discharge or abandonment. It is true that there is no completion certificate issued in favour of the appellant as it obviously could not be issued and the security deposit has not been returned to the appellant. THEre is no admission by the appellant that he has done any work thereafter, nor is there any evience on the record that the appellant was even called upon to complete the contract. THE burden of proving the charge of disqualification or corrupt practice in an election dispute lies heavily upon the person who makes that charge, and the charge must be established by evidence which is beyond reasonable doubt. K.M. Shrivastava the only witness who could have thrown some light on the further progress of the work has been the least helpful. The witness was working as Deputy Superintendent, Archaeological Survey of India, at Bhopal since March 1, 1966. According to him the repairs of the old monuments were done by his Department and the work was being done depart- mentally since the issue of the Circular dated December 13, 1957. He deposed that he had brought the file relating to the "repairing work of Ratnawali Burj" and after referring to that file he stated that upto March 31, 1956 Rs. 27, 656.9-0 were paid to the appellant. In answer to the question whether the contract had been completed by the contractor, he replied "I was not staying at Bhopal at the relevant time. However there is a letter in the file dated 28th June 1957 (Ex. P. 5) which indicates that the work was not complete in 1957 till 20th June 1957 and it also says that the work carried out was defective. I do not know whether the work has been completed or not by now, because beyond this letter (Ex. P. 5), I know nothing about this contract. " He further stated that the security deposit of the contractor is generally released after the completion of the work to the satisfaction of the Department and his record did not show that the security in connection with the contract had been released. He also did not know if any balance and how much was still due to or from the appellant.;