Holding

A lease of ferry tolls under the Northern India Ferries Act is neither a contract for execution of works nor an office of profit, so Section 9‑A does not disqualify the respondent, and the High Court’s order setting aside the appellant’s election is affirmed.

Summary

In the Assam Legislative Assembly election, Abdul Wazed's nomination was rejected on the ground that he was under 25 years of age and allegedly disqualified under Section 9‑A of the Representation of the People Act, 1951 because he held a lease of ferry tolls under the Northern India Ferries Act, 1878. The High Court held that Wazed was over 25, that the lease was not a contract for supply of goods or execution of works and did not constitute an office of profit, and therefore set aside the election of Dewan Joynal Abedin. On appeal, the Supreme Court affirmed that a ferry‑toll lease is a business contract, not a works contract nor an office of profit, and thus Section 9‑A does not disqualify the respondent. Consequently, the High Court's decision was upheld and the appellant's election was declared void.

Issues considered

Whether the first respondent had attained the age of 25 years on the date of nomination/scrutiny.
Whether the lease of ferry tolls under the Northern India Ferries Act, 1878 falls within the categories of contracts (supply of goods or execution of works) that attract disqualification under Section 9‑A of the Representation of the People Act, 1951.
Whether the respondent, as lessee of ferry tolls, held an office of profit under the State Government.

Legislation cited

Constitution of Indias. Article 173(a), s. Article 173(b), s. Article 191(1)(a)
Northern India Ferries Act, 1878s. 8
Representation of the People Act, 1951s. 100(1)(c), s. 9-A

Subjects

election lawdisqualificationoffice of profitgovernment contractage qualificationferry leaselegislative assemblynomination rejection

Judgment

A DEWAN JOYNAL ABEDIN
v.
ABDUL WAZED ALIAS ABDUL WAZAD MIAH
AND TWO OTHERS.

DECEMBER 15, 1987
B
[E.S. VENKATARAMIAH AND K.N. SINGH, JJ.] )

Representation of the People Act, 1951: Section 9-A-Elec-
tion-Disqualification on account of Government contract-Lease of
ferry tolls under Sec. 8 of Northern India Ferries Act, 1878-Whether
such contract an agreement for execution of works-Whether amounts
c to office ofprofit.

Northern India Ferries Act, 1878: Section 8-'Contractor'-
Acquiring lease under Act-Nature of contract-Whether a works
contract-Whether contractor holds 'office of profit'-Whether disen-
D titled under the Representation of the People Act to stand for and contest
an election to the House of People or the State Assembly.

The first respondent filed an election petition before the High
Court for setting aside the election of the appellant to the State Legisla-
tive Assembly under s. lOO(l)(c) of the Representation of the People
E Act, 1951, contending that the rejection of his nomination papers by the
Returning Officer was erroneous as he had, in fact, completed 25 years
of age on the date of his nomination.

The petition was opposed by the appellant contending that as the
first respondent had not completed 25 years of age on the date of
F scrutiny of nominations, the nomination papers had been rightly re·
jected, that as the first respondent had not subscribed the oath as
required by Art. 173(a) of the Constitution, he was not qualified to
contest the election, and that the first respondent was also disqualified
to be chosen to fill a seat in the Legislature of the State, as on the date of
scrutiny of the nominations he had a subsisting contract entered into by
G him with the Government, under which he had been treated as a lessee of
the Ferry for the period between 1.4.85 to 31.3.86.

The High Court framed issues on the basis of pleas raised by
parties and, after recording their evidence held that the first respondent
had completed the age of 25 years on the date of scrutiny and, there·
H fore, had necessary qualification for being a member of the Legislative
370
DEWAN JOYNAL v. ABDUL WAZED 371

Assembly, that the appellant had not proved that the first respondent A
had not subscribed the oath as required by law, and that as the first
respondent had been relieved from the charge of the Government ferry
with effect from 21.11.85, there was no subsisting contract between the
first respondent and the Government on the date of scrutiny of nomina-
tions and, therefore, he was not disqualified under s. 9-A of the Act. It
accordingly came to the conclusion that the rejection of the nomination B
papers filed on behalf of the first respondent was improper and set aside
the election of the appellant.

In the appeal before this Court, a further plea was raised on
behalf of the appellant that the first respondent was also disqualified
from contesting the elections as he held an office of profit under the
State Government by virtue of the contract entered into by him with the
c
State Government, even though the contract in question may not be one
of those contracts specified ins. 9-A of the Act.

Dismissing the appeal,
D
HELD: 1. The first respondent was not disqualified for being
chosen as a member of the State Legislature. The rejecti11n of his
nomination papers was improper. The election of the appellant was,
therefore, rightly set aside by the High Court, on the ground men-
tioned in Section 100(1)(c) of the Representation of the People Act
1951. [387G-H] E

2.1 An analysis of s. 9-A of the Representation of the People Act,
1951 shows that only in two cases a person would be disqualified if he
has entered into a contract with the appropriate Government in the
course of his trade or business which is subsisting on the date of scrutiny
of nomination. They are (1) when the contract is one for supply of goods F

'
, )
to the appropriate Government and (2) where the contract is for execu-
tion of any works undertaken by that Government. Unless the contract
in question is one which clearly falls under s. 9-A of the Act it cannot be
held that the person who is a party to the contract is disqualified for
being chosen as a member of the State Legislature. l382F-G]
G
In the instant case, the contract is not one for supply of goods to
Government. The first respondent had acquired in the public auction
the right to collect the toll by paying the amount offered by him under
the contract and had not undertaken any contract for execution of any
works undertaken by the Government. When a person acquires a right
to collect toll at a public ferry under s. 8 of the Ferries Act. it cannot be H
372 SUPREME COURT REPORTS [1988) 2 S.C.R.

A held that he is performing a contract for execution of works undertaken
by the Government. [3850, G·HI

Merely because under one of the conditions of the Form of lease
prescribed under the Ferries Act, the lessee is under an obligation
during the period of lease to mark buoys or in any other suitable
B manner all submerged obstructions or dangerous rocks in the rivers
within half a mile of the landing ghats, and shall be held responsible for ~
any loss or damage caused to the marboats striking against such sub·
merged obstructions or dangerous rocks it cannot be held that the first
respondent had undertaken to execute works undertaken by the . J
Government. (386B·Cl '
c Having regard to the conditions in the lease and the provisions of
the Ferries Act and the rules made thereunder the activity undertaken
by the lessee under the agreement cannot be considered as an agreement
for execution of works undertaken by the State Government and, there•
fore, the contract, which the first respondent had entered into with the
D State Government, even though it was subsisting on the date of the
scrutiny of nominations, would not have the effect of disqualifying him
for being chosen as a member of the State Legislative Assembly, since
s. 9-A of the Representation of the People Act, 1951 is not at all
attracted to such a case. (3860-E]

E B. Lakshmikantha Rao v. D. Chinna Mallaiah and Others,
A.I.R. 1979 A.P. 132 approved.

N. Satyanathan v. K. Subramanyan and Others, (1955] 2 S.C.R
83 explained.

F Ram Padarath Mahto v. Mishri Singh & Anr., [1961) 2 S.C.R.
470, referred to.

2.2 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
O whatever amount he has agreed to pay at the time of auction. Whether
he makes any profit in that business or not depends ultimately on the
amount of toll he is able to realise during the whole period of lease. Such
a contract is essentially in the nature of a business. It cannot be termed
as an office in any sense. A transaction of lease under the Ferries Act Is
not a lease of an office. The first respondent was, therefore, not holding
fl an office of profit when he was a lessee under the Ferries Act just like an
DEWAN JOYNAL v. ABDUL WAZED [VENKATARAMIAH, J.] 373

Excise Contractor or a fair price shop dealer who sells grains supplied A
by Government is not such a holder of office of profit. [386H; 387A-B, FJ
•'
State of Uttar Pradesh v. Satya Narain Prasad, (1970] 3 S.C.R.
198, referred to.

2.3 The High Court was right in upholding, on the basis of the B
evidence of the three witnesses examined by the first respondent and the
electoral roll and the High School Leaving Certificate, that the first
respondent was more than 25 years of age on the date of Scrutiny and
·~ was thus eligible to be a member of a Legislative Assembly. (3770]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4 C
(NCE) of 1987.

From the Judgment and Order dated 2.12.1986 of the High Court
of Gauhati in Election Petition No. 2 of 1986.

Govind Mukhoty, Anil Nauriya and Mrs. Rekha Pandey for the D
Appellant.

Miss Halida Khatoon, Abdul Sattar and R.C. Kaushik for the
Respondents.

The Judgment of the Court was delivered by E

VENKA TARAMIAH, J. This appeal is filed by the appellant
Dewan Joynal Abedin against the judgment dated December 2, 1986

, of the High Court at Gauhati setting aside his election to the Legisla-
tive Assembly of Assam at the election held on the 16th December,
1985 from the 22-Salmara South Legislative Assembly Constituency on
an election petition filed by respondent No. 1 Abdul Wazed alias
Abdul Wazed Miah in Election Petition No. 2 of 1986.
F

The last date for making nominations for election from the
aforesaid constituency was 22nd November, 1985 and the date for the
)
scrutiny of nominations was November 23, 1985. The appellant, the Ist G
respondent and the second respondent Bazlul Basil were the three
candidates on whose behalf nomination papers had been filed before
the expiry of the time fixed for making nominations. Respondent
No. 3, M. Bhattacharjee, was the Returning Officer. At the time of the
scrutiny respondent no. 2 raised objection to the nomination of
respondent No. 1 on the ground that respondent No. 1 had not comp- H
374 SUPREME COURT REPORTS (1988] 2 S.C.R.
j
A leted 25 years of age on the date of scrutiny as required by Article
173(b) of the Constitution which provided that a person was not
qualified to be chosen to fill a seat in the Legislature of a State unless
he was in the case of a seat in the Legislative Assembly not less than
twenty-five years of age and in the case of seat in the Legislative
Council not less than thirty years of age. The proposer of one of the
B nomination papers filed on behalf of the respondent No. 1 prayed for
some time to refute the objection. The Returning Officer, however, ~
proceeded to reject the nomination papers filed on behalf of the Ist
respondent on 23.11.1985 holding that the Ist respondent had not
completed 25 years of age and therefore was not qualified to be a _}
member of the Legislative Assembly. The election process continued
with only the appellant and the second respondent as the candidates
c and after the poll the appellant was declared as having been elected on
the basis of the larger number of votes secured by him. Thereupon the
Ist respondent filed the election petition before the High Court out of
which this appeal arises contending that he had infact completed 25
years of age on the date of his nomination and that the rejection of his
D nomination papers was erroneous. The Ist respondent further conten-
ded that on account of the rejection of his nomination papers the
election of the appellant was liable to be set aside under section
lOO(l)(c) of the Representation of the People Act, 1951 (hereinafter
referred to as 'the Act') which provided that the election of a success-
ful candidate was liable to be set aside on the ground that any nomina-
.E tion had been improperly rejected. In the course of his written state-
ment the appellant raised several pleas, and of them three were mate-
rial for purposes of this case. First he pleaded that the Ist respondent
had not completed 25 years of age on the date of scrutiny of nomina- "' '

~
tions and therefore the nomination papers had been rightly rejected,
secondly he pleaded that the Ist respondent had not subscribed an oath
F as required by Article 173(a) of the Constitution and therefore the Ist
respondent was not qualified to contest the election and thirdly he
pleaded that the Ist respondent was also disqualified to be chosen to
fill a seat in the Legislature of the State as on the date of scrutiny of the
nominations the Ist respondent had a subsisting contract entered into·

G
by him with the Government on Assam under which he had been treated
as a lessee of the Phulbari Ghat Ferry for the period between 1.4.1985
..
and 31.3.1986. The Ist respondent pleaded that he had completed the
~-
age of twenty-five years on the date of scrutiny of nomination that he
had subscribed an oath as required by Article 173(a) of the Constitu-
tion and that while it was true that he had entered into such a contract
he had been released from the said contract on 21.11. 1985 by the
H Executive Engineer concerned and therefore there was no subsisting
DEWAN JOYNAL v. ABDUL WAZED (VENKATARAMIAH, J.) 375

contract between him and the Government of Assam on the date of A
scrutiny. On the basis of these pleas Issue No. 5 and Issue No. 6 were
1 framed by the High Court which read as follows:
5. Whether the .nomination paper of the petitioner
has been improperly rejected? If so, whether the electi.on
of the respondent is void? B
or,
Whether the nomination paper of the petitioner was liable
to be rejected as alleged in para 7 of the written statement?
6. Whether the petitioner had incurred disqualifica-
tion under section 9A of the Representation of the People C
Act? '
.l
After recording the evidence produced by the parties the learned
Judge of the High Court who tried the election petition held that the
lst respondent had completed the age of 25 years on the date of
scrutiny and therefore he had the necessary qualification for being a
D
member of the Legislative Assembly. He accordingly held on the first
part of issue No. 5 in favour of the Ist respondent. On the second part
of issue No. 5 the learned Judge held that the appellant had not proved
that the Ist Respondent had not subscribed on oath as required by law.
On issue No. 6 the learned Judge held that the-Ist respondent had been
relieved from the charge of Phulbari Ghat Ferry with effect from
E
21. 11.1985 and therefore there was no subsisting contract between the
lst respondent and the Government of Assam on the date of scrutiny
I '/ of nominations and therefore the Ist respondent was not disqualified
under section 9-A of the act. In view of his findings recorded on Issues
Nos. 5 and 6 the learned Judge came to the conclusion that the rejection
of the nomination papers filed on behalf of the Ist respondent was F
improper and therefore the election was liable to be set aside. He
accordingly set aside the election of the appellant. Aggrieved by the
judgment of the learned Judge the appellant has filed this appeal
under section 116-A of the Act.
When this appeal was taken up for hearing on the first date it was
) noticed that the High Conrt had not considered the question whether G
section 9-A of the Act was attracted at all to the contract in question as
it appeared to be not one of those contracts which had the effect of
disqualifying a candidate under section 9-A of the Act. The case there-
after was adjourned to a subsequent date for hearing to enable the
learned counsel to make their submissions on the above question also.
!3Y the next date of hearing the appellant filed a petition before the H
376 SUPREME COURT REPORTS [1988) 2 S.C.R.

A C"urt seeking an amendment of the written statement raising the plea '
that the Ist respondent was also disqualified from contesting the elec-
tion as he held an office of profit under the State Government by
virtue of the contract that had been entered into by him with the State
Government even though the contract in question may not be one of
those contracts specified in section 9-A of the Act. In other words it
'3 was contended that the Ist respondent was disqualified under Article
191(1)(a) of the Constitution which provided that a person would be
disqualified for being chosen as, and for being, a member of the
Legislative Assembly of a State if he held 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
C State by law not to disqualify its holder.
j
It is necessary to refer to one aspect of the case. Although before
the High Court it was urged by the appellant that the Ist respondent
had not subscribed on oath in compliance with the provisions of Arti-
cle 173 of the Constitution and thus he was not eligible to contest the
b election and that the High Court had negatived the said contention, no
arguments were addressed before us by the learned counsel for the
appellant questioning the finding of the High Court on the above
question. We do not, therefore, find it necessary to discuss the evi-
dence relating to the above issue.

E Three questions arise for consideration in this appeal: (i)
whether the lst respondent had not completed the age of 25 years on
the last date for filing nomination?; (ii) whether the contract in ques-
1' I
tion said to have been entered into by the Ist respondent with the
Government of Assam to collect the toll at the ferry was a contract for
the execution of any works undertaken by the Government of Assam
F attracting section 9-A of the Act and if so whether the said contract
was subsisting on the date of scrutiny of nomination?; and (iii) whether
the Ist respondent held an office of profit under the Government of
Assam by virtue of being a lessee of the right to collect the toll at the
ferry?

G On the question of the age of the Is! respondent there is practi-
cally no evidence adduced on behalf of the appellant. The Electoral
Roll, which was marked as Exhibit 7, in the case showed that the Ist
respondent was aged 29 years. In support of his case, the Ist respon-
dent had examined three witnesses, P.W. 2 Aripulla, P.W. 3 Sirajul
Islam and P. W. 6 Habibar Rahman. He also produced his High School
H Leaving Certificate (Exhibit 12) which showed that he was above 25
DEWAN JOYNAL v. ABDUL WAZED (VENKATARAMIAH, J.] 377

years on the date of the nomination. The High Court has summed up A
its conclusion of the above question at paragraph 14 of its judgment
thus:

"14. As already held that the High School leaving
Certificate (Ext-12) and admission register cannot be re-
jected. The oral evidence of the witnesses relating to the B
age has not been shaken in the cross-examination. As re-
gards age, the relatives are best witnesses. Considering the
High School Leaving Certificate (Ext-12) Electoral Roll
(Ext-7) and oral evidence of PW 2 Aripulla, PW 3 Sirajul
Islam and PW 6 Habibar Rahman, it is concluded on the
age of the petitioner on the date for making nomination or
scrutiny of nomination that he had completed the age of 25
c
years."

I- We have gone through the evidence bearing on the above ques-
tion. We are of the view that the High Court was right in upholding
that the Ist respondent was more than 25 years of age on the date of D
scrutiny and he was eligible to be a member of the Legislative Assembly.
Thus the ground on which the Returning Officer had rejected his
nomination papers is untenable.

This takes us to the next question, namely, whether the Istre-
spondent was disqualified for being chosen as a member of the Legisla- E
tive Assembly on account of the contract entered into by him in the
course of his trade or business with the Government of Assam subsist-
ing on the date of scrutiny of nominations as provided by section 9-A

, of the Act. Section 9-A of the Act reads thus:

"9-A. Disqualification for Government contracts,
etc.-A person shall be disqualified if, and for so long as,
there subsists a contract entered into by him in the course
of his trade or business with the appropriate Government
F

for the supply of goods to, or for the ·execution of any
works undertaken by that Government."
G
There is a public ferry at Phulbari-ghat, which is under the con-
trol of the Executive Engineer, Public Works Department, Goalpara
(Roads) Division. It is admitted by the lst respondent that he was the
lessee of the tolls of the said public ferry for the period between
1.4.1985 and 31.3.1986 but his case, however, was that he had been
relieved from the said contract on 21.11. 1985. But the appellant H
378 SUPREME COURT REPORTS [1988] 2 S.C.R.

A pleaded in the course of his written statement that only on 25.11.1985,
that is on the date of scrutiny of the nomination papers, the Executive
Engineer had at the request of the appellant, allegedly made on
18.11.1985 released the petitioner from the contract and that the order
of release had been made after the scrutiny was over. The High Court
B had, therefore, to consider the question whether the order of release
had been made on the 21. 11.1985 or on 25.11.1985 after the scrutiny of
nomination papers. On a consideration of the evidence led by the
parties, the High Court held that the Ist respondent had been relieved
of the charge of the ferry on 21. 11. 1985 and that he was not disquali-
fied under section 9-A of the Act. As stated earlier when the matter )
was argued before us on the first date of hearing the learned counsel
C for the parties were asked to make their submission on the question
whether a lease of the ferry tolls attracted the provisions of section 9-A A
of the Act and the learned counsel have made their submissions in that
behalf. The management of a public ferry is governed by the provi-
sions of the Northern India Ferries Act, 1878 (hereinafter referred to
D as 'the Ferries Act') which has been extended to the State of Assam.
Section 8 of the Ferries Act reads thus:

"8. Letting ferry tolls by auction-The tolls of any
public ferry may, from time to time, be let by "public
auction for a term not exceeding five years with the
approval of the Commissioner, or by public auction, or
E
otherwise than by public auction, for any term with the
previous sanction of the State Government.

The lessee shall conform to the rules made under this
Act for the management and control of the ferry, and may
be called upon by the officer in whom the immediate
F
superintendence of the ferry is vested, or, if the ferry is
managed by a municipal or other public body under section
7 or section 7-A, then by that body, to give such security
for his good conduct and for the punctual payment of the
rent as the officer or body,.as the case may be, thinks fit.
G
When the tolls are put up to public auction, the said
officer or body, as the case may be, or the officer conduct-
ing the sale on his or its behalf may, for reasons recorded in
writing, refuse to accept the offer of the highest bidder, and
may accept any other bid, or may withdraw the tolls from
H auction."
DEWAN JOYNAL v. ABDUL WAZED (VENKATARAMJAH, J.) 379

Section 9 of the Ferries Act provides for the recovery of arrears
A
from the lessee. Section 10 of the Ferries Act provides for the cancella-
J
tion of the lease by the Government. Section 11 of the Ferries Act
provides for the surrender of the lease by the lessee. Section 12 of the
Ferries Act makes provision for the promulgation of rules which inter
alia may provide for the control and the management of all public
ferries within a division and for regulating the traffic at such ferries; for B
regulating the time and manner at and in which, and the terms on
which, the tolls of such ferries may be let by auction, and prescribing
the persons by whom auctions may be conducted and when the tolls of
•i a ferry have been let under section 8 of the Ferries Act for collecting
the rents payable for the tolls of such ferries. Section 13 of the Ferries
Act prohibits plying of any ferry within two miles of a public ferry
without sanction from the appropriate authority. Section 14 of the c
~
Ferries Act provides that whoever uses the approach to, or landing-
place of, a public ferry is liable to pay the tool payable for crossing
such ferry. Under section 15 of the Ferries Act provision is made for
fixing the rates of tolls. It says that the tolls, according to such rates as
are, from time to time, fixed by the State Government, shall be levied D
on all persons, animals, vehides and other things crossing any river by
a public ferry and not employed or transmitted on the public service.
The State Government is, however, given power to declare that any
persons, animals vehicles or other things shall be exempt from payment
of such tolls. Where tolls of a ferry have been let under section 8 of the
Ferries Act any such declaration, if made after the date of the lease, E
shall entitle the lessee to such abatement of the rent payable in respect
.... ., of the tolls as may be fixed by the Commissioner of the Division or

,
such other officer as the State Government may, from time to time,
appoint in this behalf by name or in virtue of his office. The Rules have
been framed by the Chief Engineer, Assam under section 12 of the
Ferries Act for purposes of the control and management of and for F
regulating the traffic at all Government ferries. Under the said Rules,
for Government ferries suitable ferry boats, engines or mars are sup-
plied at the expense of the Public Works Department. The lessee shall
be responsible as a bailee for these boats, engines and mars and he
shall, on the expiry or earlier termination of his lease, return them to
)
the Executive Engineer in good condition, allowance being made for G
fair wear and tear. The lessee who acquires the right to collect toll is
-~ bound to cross over on tender of payment in cash of the authorised toll
or on production of a season ticket or pass, all persons desiring to cross
within the hours for which the ferry according to the terms of the lease
is open. He is precluded from carrying persons whom he may know or
suspect to befugitives from justice or to be bent upon an unlawful H

I
380 SUPREME COURT REPORTS [1988] 2 S.C.R ..

A purpose. He cannot carry over at any one time in his ferry boat or mar
more than the number of persons, animals, vehicles or other things
specified in his lease as permitted to be so ferried. He has to provide a
shed 15 feet long by 15 feet broad, on each side of the ferry for the
temporary accommodation of persons wishing to cross. The lessee has
to furnish monthly a return in the prescribed form supplied to him by
B the Executive Engineer giving particulars which are required to be
furnished through it. The approach roads to all Government ferries
and low level bridges are constructed and maintained by the Public
Works Department The lessee is responsible for conveying immediate
information of damage to approaches to the concerned authorities. .._,(
The Public Works Department has to provide sufficient means for
C embarking and disembarking all persons, animals, vehicles and things
which a lessee is bound to cross over at his ferry with the exception of
ropes and tying posts for securing the mar. All Government ferries
shall generally be let by public auction; provided that, for special
reasons to be recorded in writing, the Executive Engineer or Sub-
Divisional Officer, Public Works Department, may reserve any ferry·
D from lease and may work it direct. Collection of tolls by departmental
agency will only be resorted to when absolutely unavoidable. The
· auction sale of the right to carry passengers at the ferry is held by the
Deputy Commissioner/Civil Sub-Divisional Officer or some officer de-
puted by him for the purpose. The person whose bid is accepted has to
pay the purchase money in accordance with the Rules. If there is any
E default on the part of the lessee in paying the amount payable by him, the
lease is liable to be cancelled. These are broadly the features of the
contract between a lessee of a ferry and the Government. The question
for consideration is whether a person who takes on lease a ferry under
section 8 of the Ferries Act becomes disqualified for contesting the
election to the State Legislature under section 9-A of the Act. At this
f stage it is necessary to set out the history of the provisions contained in
section 9-A of the Act. When the Act was enacted originally there was
section 7 of the Act the relevant part of which reads as follows:

"7. A person shall be disqualified for being chosen as
and for being a member of the either House of Parliament
0 or of the Legislative Assembly or Legislative Council of a
State-

....................................................
-+
( d) If, whether by himself or by any person or body
H of persons in trust for him or for his benefit or on his
DEWAN JOYNAL v. ABDUL WAZED [VENKATARAMIAH, J.I 381

account he has any share or interest in a contract for the A
supply of goods to, or for the execution of any works or the
performance of any services undertaken by the appropriate
Government."

In 1958 this provision was amended. In the Statement of Objects B
and Reasons of the Representation of the People (Amendment) Bill,
c( 1958, which was enacted as the Representation of the People (Amend-
ment) Act, 1958 it was stated as follows:

"The language of section 7(d) of the 1951 Act which
provides for disqualification in case of contracts with the
Government is wide and vague enough to bring any kind or c
category of contract within its scope and it has been a fruit·
ful source of election disputes in the past. Persons who only
occasionallv broadcast any talk from the radio station or
contribute article to any Government publication may
come within the mischief of this section." D
The Bill was referred to a Select Committee of Parliament. The
said Select Committee reported on December 15, 1958 with regard to
the proposed redrafting of Sectin 7(d). The Select Committee sug·
gested as follows: ·
).._
E
"The Committee have carefully considered the pro·
posed substituted clause (d) of section 7 of the Representa-
tion of the People Act, 1951. The Committee feel that in
view of the expanding activities of the Central and State
Governments as the biggest purchasers and suppliers of
goods including food grains and other essential commo-
F
dities, a large number of persons in the country will have
some contractual relationship with the Governments in
these matters. Under the circumstances it will not be
proper to disqualify all such persons who are having con-
tractual dealings with the Governments from standing for
election or being elected as members of Parliament or State
G
Legislatures. The Committee, therefore feel that the better
course would be altogether to omit the existing clause (d)
of section 7 of the Act."

This suggestion was not, of course accepted. After the amend-
ment in 1958 section 7(d) of the Act read thus: H
382 SUPREME COURT REPORTS [1988] 2 S.C.R.

A "7. A person shall be 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-

B
(d) If there subsists a contract entered into in the ,k
course of his trade or business by him with the appropriate
Government for the supply of goods to, or for the execu-
tion of any works undertaken by that Government." • .) ..

c By the Representation of the People (Amendment) Act, 1966
some of the provisions of the Representation of the People Act were ~
amended. On that occasion sections 7, 8, 9 and some other provisions
of the Act, which provided for the disqualification of persons for being
chosen as members of Parliament or of the State Legislature were ~
1

substituted by new sections 7, 8, SA, 9, 9A, 10 etc. The present section
D 9-A was enacted in the place of the former section 7(d). Section 9-A of
the Act was enacted in the same pattern in which section 7(d), stood
after the amendment in 1958. An explanation was, howeve;', added to
it which provided that only by reason of the fact that the Government
had not performed its part of the contract either wholly or in part, it
could not be said that the contract which attracted section 9-A was ),,,
E subsisting where a contract had been fully performed by the person by
whom it had been entered into with the appropriate Government.
...
a person would be disqualified if he has entered into a contract
the appropriate Government in the course of his trade or business
with1
An analysis of section 9-A of the Act shows that only in two cases ",

F which is subsisting on the date of scrutiny of nomination. They are (i) ·.
when the contract is one for supply of goods to the appropriate
Government and (ii) where the contract is for the execution of any
works undertaken by that Government. If a contract belonging to
either of the two categories is subsisting on the date of the nomination,
the person will be disqualified for being chosen as a member. In the ,
G present case the contract is not one for supply of goods to the Govern- '· "
ment. It does not, therefore, fall under the first class of contracts -4
which create the disqualification. The question for determination is .~
whether the contract to collect toll at a Government ferry entered into
in accordance with the Ferries Act amounts to a contract for the execu-
tion of any works undertaken by the Government. At this stage we
H should remember that the words 'or the performance of any services'
DEWAN JOYNAL v. ABDUL WAZED IVENKATARAMIAH, J.] 383

were omitted from section 7(d) by the amendment made in the year A
1958. In N. Satyanathan v. K. Subramanyan and Others, [1955) 2
' "' S.C.R. 83 this Court had occasion to construe section 7(d) of the Act
before its amendment in 1958. In that case the appellant was a con-
tractor who had entered into an agreement with the Central Govern-
ment whereby he had contracted with the Governor-General for the
provision of a Motor Vehicle Service for the conveyance of postal B
-~ articles and mail bags. Under the contract the Governor-General had
agreed to pay to the contractor Rs.200 per month during the subsis-
tence of the agreement as his remuneration for service to be rendered
• )o by him. The appellant therein was held to be disqualified under section
7(d) of the Act, as it stood then, as he had undertaken to carry out a
service which the Government had undertaken to do. The Court said C
,l. that "it cannot be gainsaid that the Government in the Postal Depart-
ment is rendering a very useful service and that the appellant has by his
, ~ contract with the Government undertaken to render that kind of
service on a specified route. The present case is a straightforward
illustration of the kind of contract contemplated by section 7(d) of the
Act." The Court took the above view in view of the presence of words D
'the performance of any service' under section 7(d) of the Act, as it
stood then. Those words were omitted from section 7(d) on its amend-
ment in the year 1958 and section 9-A of the Act as it stands today also
does not contain those words. In Ram Padarath Mahto v. Mishri Singh
~ & Anr., [1961) 2 S.C.R. 470 a similar question arose for consideration.
The appellant in that appeal was a member of a joint Hindu family E
which carried on the business of Government stockists of grain under a
A 1 contract with the Government of Bihar. His nomination for election to
the Bihar Legislative Assembly was rejected on the ground that he was
disqualified under section 7(d) of the Act, as he had an interest in a
contract for the performance of services undertaken by the Bihar
Government. The appellant contended that the service undertaken by F
, the Government was the sale of foodgrains under the Grain Supply
Scheme and the contract was not for the sale of such foodgrains and
did not attract the provisions of section 7( d) of the Act. This Court
held that the contract was not one for the purpose of any service
, . ~ undertaken by the Government and the appellant therein was not
disqualified under section 7(d) of the Act. The Court held that a con- G
,. ~ tract of bailment which imposed on the bailee the obligation to stock
and store the foodgrains in his godowns was not a contract for the
purpose of the service of sale of grain which the Government had
undertaken. The Government had undertaken the work of supplying
grain but the contract was not one for the supply of grain. The Court
distinguished the decision in N. Satyanathan v. K. Subramanyam, H

/
384 SUPREME COURT REPORTS [ 1988/ 2 S.C.R. ~
A (supra) while reaching the conclusion that the appellant was not dis-
qualified for being chosen as a member of the Bihar Legislature. So
even at a time prior to the amendment of section 7(d) of the Act in the "
year 1958 it was possible to take the view that certain types of contracts
entered into with the appropriate Government, even though they were
subsisting on the date of scrutiny of nomination did not disqualify a
B person from being chosen as a member of the State Legislature. It is
pertinent to refer to the observation made by Ga jendragadkar, J. in )c
Ram Padarath Mahto's case (supra) which runs as under:

"It may sound technical, but in dealing with a statu~)..
tory provision which imposes a disqualification on a citizen
c it would be unreasonable to take merely a broad and
general view and ignore the essential points of distinction j
on the ground that they are technical. The narrow question
is: if the State Government undertook the work of suplying ,
the grain, is the contract one for the supply of grain?; In
our opinion, the answer to this question must be in the
D negative; that is why we think the High Court did not cor-
rectly appreciate the effect of the contract when it held that
the said contract brought the appellant's case within the
mischiefofs. 7(d)."

Unless the contract in question is one which clearly falls under ).
E section 9-A of the Act, it would not be proper to hold that the person
who is a party to the contract is disqualified for being chosen as a
member to the State Legislature. In B. Lakshmikantha Rao v. D. I- ,
Chinna Mallaiah and Others, A.I.R. 1979 A.P. 132 the question that
arose for consideration was whether a person who was carrying on the ~,
business in arrach and toddy under a contract with the Government
F under the provisions of the Andhra Pradesh Excise Act, 1968 was
disqualified for being chosen as a member of the Legislature. The facts
of that case briefly stated were thus. There was an agreement between
the highest bidder, i.e., the returned candidate and the Government in
respect of the carrying on the business in arrack and toddy. A perusal
of the relevant provisions i.e., sections 15 and 17 of the Andhra ~.
G Pradesh Excise Act and rule 21 of the Rules framed under that Act as
well as the agreements signed by the returned candidate, showed that -4
the highest bidder had to deposit the monthly rentals and purchase the ~
arrack from the Government at the issue price and sell the same to the
public. If there were any arrears in the monthly rentals the same could
be recovered as arrears of land reveuue. Similarly with regard to the
H toddy shop he had to tap the toddy from the trees allotted to him by
DEWAN JOYNAL v. ABDUL WAZED [VENKATARAMIAH, J.] 385

the Government by paying the tree-tax and sell the toddy to the public. A
For the toddy shop also he had to pay monthly rentals and if he fell in
arrears the same could be recovered as arrears of land revenue. There
were oiher incidental conditions in the agreements. The Andhra
Pradesh High Court held that since the contracts entered into by the
successful candidate with the State Government to sell arrack and
toddy did not come within the mischief of section 9-A of lhe .Act as B
they were neither for supply of goods to the Government nor for the
execution of any works undertaken he did not suffer from any dis-
qualification for being chosen as a member of the Legislative Assem-
bly. We have gone through the above decision carefully. We are of the
view that the High Court was right in the said case in holding that the
returned candidate had not suffered from any disqualification by C
reason of the fact that he was an excise contractor.

In the present case the position of the Ist respondent is more or
less similar to the position of the returned candidate in the decision of
the Andhra Pradesh High Court. The Ist respondent had acquired in
the public auction the right to collect the toll by paying the amount D
which he had offered to pay under the contract. He had not underta-
ken thereby any contract for execution of any works undertaken by the
Government. 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, defence works etc. The Ist respondent in this case had not E
undertaken to carry on any such work. According to the Shorter
Oxford English Dictionary the expression 'work' means a structure or
apparatus of some kind; an architectural or engineering structure, a

, building edifice. When it is used in plural, i.e., as 'works' it means
'architectural or engineering operations; a fortified building; a defen-
sive structure, fortification; any of the several parts of such structure'.
The word 'works' used in Entry 35 of List II of the Seventh Schedule of
the Constitution of India which reads as "works, lands and building
vested in or in the possession of the State" is used in the same sense.
F

The running of boats across inland waterways in a topic which falls
under Entry 32 of List III of the Seventh Schedule which reads thus:
"Shipping and navigation on inland waterways as regards mechanically G
propelled vessels, and the rule of the road on such waterways, and the
carriage of passengers and goods on inland waterways subject to the
provisions of List I with respect to national waterways." It is, there-
fore, difficult to hold that when a person acquires the right to collect
toll at a public ferry under section 8 of the Ferries Act he is performing
a contract of execution of works undertaken by the Government. It H

I
386 SUPREME COURT REPORTS [1988] 2 S.C.R.

A may have been perhaps different if the words 'in performance of any
services' which were present in section 7(d) of the Act, as it stood prior
to its amendment in 1958 had been there is section 9· A of the Act.

We do not find any substance in the argument urged on behalf of
the appellant that because under Condition No. 10 of the form of lease
B prescirbed under the Ferries Act the lessee is under an obligation
during the period of lease to mark buoys or in any other suitable
manner, all submerged obstruction or dangerous rocks in the rivers
within half a mile of the landing ghats and shall be held responsible for
any Joss of damage caused to the marboats striking against such sub-
merged obstructions or dangerous rocks it should be held that the Ist
respondent had undertaken to execute works undertaken by the
C Government. The above condition only requires the lessee to mark
4j
buoys or in any other suitable manner the places where there were any
submerged obstruction or dangerous rocks within half a mile of the
landing ghats. Having regard to the conditions of the lease and the
provisions of the Act and the Rules made thereunder we are clearly of
b the view that the activity undertaken by the lessee under the agree-
ment cannot be considered as an agreement for execution of works
undertaken by the State Government.

We are, therefore, of the view that the contract which the Ist
respondent had entered into with the State Government even though it
E was subsisting on the date of scrutiny of nominations would not have
the effect of disqualifying him for being chosen as a member of the
State Legislative Assembly since section 9-A of the Act is not at all
attracted to such a case.

The learned counsel for the appellant however tried to justify the
F rejection of the nomination papers of the Ist respondent on the ground
that the appellant was holding an office of profit under the State Gov-
ernment when the contract to ply the boats at the ferry was subsisting.
We find it difficult to agree with the learned counsel that under the
contract in question the Ist respondent had been inducted into any
office under the State Government. An 'office' means a public or
G private employment with certain duties to be performed. The words
'office' and 'officer' are used somtimes in a wide sense and somtimes in
a narrow sense. A lawyer is sometimes called an officer of the Court.
But still he is not holding any office profit as such for purposes of the
law of elections. A lessee of tolls under the Ferries Act is only a
contractor who under the lease acquires the right to collect whatever
H toll is paid by persons who the ferry against payment to Government in
DEWAN JOYNAL v. ABDUL WAZED [VENKATARAMIAH, J.i 387

advance whatever amount he had agreed to pay at the time of auction. A
Whether he makes any profit in that business or not depends ulti-
' mately on the amount of toll he is able to realise during the whole
period of lease. Such a contract is essentially in the nature of a busi-
ness. It cannot be termed as an office in any sense. A transaction of
lease under the Ferries Act is not a lease of an office. In State of Uttar
Pradesh v. Satya Narain Prasad, (1970] 3 S.C.R. 198 this Court dealing B
~ with a case in which the question involved related to the termination of
lease under section 10 of the Ferries Act has referred to the right of a
lease as one having the character of a business in the following passage

r
at page 200:

"In construing section 10 of the Act it has to be borne
in mind that it deals with the cancellation of a lease of tolls
c
of a public ferry. In other words, once the notice in effec-
}- tive valuable rights of a lessee came to an end. This is
recognised by the Legislature by providing a six month's
notice. This period is given so that he can wind up this
particular business." D
(underlining by us)

It is urged that since the Ist respondent had the right to secure
the services of the police whenever needed the Ist respondent should
>-- be deemed a person holding an office of profit. The right to requisition
the services of the police again did not make the Ist respondent a E
person holding an office of profit. In fact for that matter anybody may

'' complain to the police and seek their assistance when there is threat to
public property or to the person or property of any person. We hold

, that the Ist respondent was not holding an office of profit when he was
a lessee under the Ferries Act just like an Excise contractor or a fair
price shop dealer who sells grains supplied by Government is not such
a holder of office of profit.

In view of the above findings it is not necessary to decide the
F

question whether the lease was subsisting on the date of scrutiny of
nomination or not.
G
Thus in any view of the matter it cannot be held that the Ist
respondent was disqualified for being chosen as a member of the State
Legislature. The rejection of his nomination papers was, therefore,
improper. The election of the appellant was; therefore, rightly set
aside by the High Court on the ground mentioned in section lOO{l){c)
of the Act. H
388 SUPREME COURT REPORTS [ 1988] 2 S.C.R.

A The appeal, therefore, fails and it is dismissed. Having regard to
the peculiar features of the case we direct the parties to bear their own
costs both in this Court and in the High Court.

N.P.V. Appeal dismissed.
B