LALITESHWAR PRASAD SAHI Vs. BATESHWAR PRASAD

JUDGEMENT

(1.) This is an appeal by certificate granted by the High Court of Patna, directed against the judgment of the said High Court reversing the decision of the Election Tribunal, Muzaffarpur. This appeal arises out of the election of the respondent, Shri Bateshwar Prasad, to the Bihar Legislative Assembly from Lal Ganj North Constituency. The appellant was one of the candidates. He filed an election petition No. 133 of 1962, alleging inter alia that the election of respondent No. 1, Shri Bateshwar Prasad, was void as he was disqualified under S. 7 (d) of the Representation of the People Act, 1951, hereinafter referred to as the Act. His complaint was that respondent No. 1 had entered into various contracts with the Government and that these contracts were subsisting on January 14 1962, the date fixed for filing nomination papers. The Election Tribunal, after reviewing both oral and documentary evidence, held that the respondent had entered into contracts to do Mosaic flooring work in the Rajendra Surgical Block of Patna Medical Hospital and that these were subsisting on the date of the nomination, viz., January 14, 1962. The Election Tribunal further held that by virtue of Cl. 3 (c) of the conditions embodied in the agreement, Ex. 'D', it was not at all necessary for the Public Works Department to have entered into a contract with the respondent's company, called the Patna Flooring company. In the result, the Election Tribunal declared the election of Respondent No. 1 to the Bihar Legislative Assembly from the Lal Ganj North Constituency as void, but refused the prayer of the petitioner before it to be declared elected.

(2.) Both sides appealed to the High Court but we are only concerned with the election appeal No. 11 of 1963, filed by Bateshwar Prasad, the returned candidate. Before the High Court three points were taken:

(3.) The High Court reviewed the entire evidence and came to the conclusion on point No. 1 above that the appellant was not a contractor under the State Government but continued to be a sub-contractor under Saxena for mosaic work. It also differed from the Election Tribunal on the interpretation of Cl. 3 (c) of Ex. 'D'. On the second point, the High Court felt that in view of its decision of the first point, the question was of mere academic interest and there might be substance in the argument of the learned counsel for the respondent that this question ought not to be allowed to be raised at this stage. Regarding the third point, the High Court held that Chaturbhuj's case (Chatturbhuj Vithaldas Jasani vs. Moreshwar Parashram; (1954) SCR 817) was distinguishable because in the instant case the State Government has not accepted the performance of the contract by the appellant. It further held that since the decision in Chatturbhuj's case, (supra), the law had been amended by the amendment of S. 7 and the effect of the amendment was