Holding

Improper rejection of a nomination paper is a sufficient ground under Section 100(1)(c) of the Representation of the People Act, 1951 to declare the election void, and a PDS dealer is not disqualified under Section 9A.

Summary

In the 1995 Bhanjanagar Assembly election, the Returning Officer rejected the nomination of Panchanan Das (respondent No. 7) on the ground that he was a dealer under the Public Distribution System (PDS). The appellant, Somnath Rath, challenged the election of the returned candidate, Bikram K. Arukh, alleging that the rejection was improper and that the petitioner was disqualified under Section 9A of the Representation of the People Act, 1951. The High Court held that the rejection was not based on a valid disqualification but dismissed the petition, reasoning that the rejection had no material effect on the result. The Supreme Court held that a PDS dealer does not fall within the disqualification contemplated by Section 9A and that the mere improper rejection of a nomination paper is a sufficient ground under Section 100(1)(c) to declare the election void, without the need to assess material effect. Consequently, the Court set aside the election of the returned candidate and allowed the appeal.

Issues considered

Whether the nomination of respondent No. 7 was improperly rejected on the ground of being a PDS dealer and thus disqualified under Section 9A of the Representation of the People Act, 1951.
Whether an improper rejection of a nomination paper alone is a sufficient ground under Section 100(1)(c) of the Act to declare an election void, without inquiry into material effect.
Whether the election petition filed by the appellant is maintainable.

Legislation cited

Representation of the People Act, 1951s. 100(1)(c), s. 100(1)(d), s. 9A

Subjects

election lawnomination rejectiondisqualificationpublic distribution systemSection 9ASection 100election petitionvoid election

Judgment

A SO MN A TH RA TH
v.
BIKRAM K. ARUKH AND ORS.

SEPTEMBER 14, 1999

B {DR. A.S. ANAND, C.J., S. RAJENDRA BABU AND
R.C. LAHOTI, JJ.)

Election Laws:

C Representation of the People Act, 1951:

Sec.9A-Election-Nomination papers-Disqualification of candidate--
Contract with Government for supply of goods or execution of any work
undertaken by Government-Licensee under Public Distribution System-
Whether disqualified-Held, No.
D
Sec.100(/)(c)-Election-Nomination papers-Improper rejection of-
Declaration of election invalid-Enquiry as to 'material effect of rejection'-
Requirement of-Held: improper rejection of a nomination paper by itself is
a sufficient ground for declaring the election invalid-No enquiry as to
material effect due to rejection required
E
Sec. IOO(l)(d)-Declaration ofelection invalid-Enquiry as to material
effect-Requirement of

Words and Phrases:

F "Works"-Scope of in the context of section 9A of the Representation
of People Act, 1951.

In the assembly elections for Bhanjnagar (Omsa)/Constituency, several
persons, including appellant and respondents fded their nomination papers.
The Returning Officer rejected the nomination papers of respondent Nos.
G S,6 and 7. The nomination paper of respondent No. 7 was rejected on the
ground that he was a dealer under the public distribution system. Respondent
No. 1 was elected from the said constituency. Appellant challenged the
election inter alia on the ground that rejection of the nomination papers of ·
respondents No. S, 6 and 7 was improper. High Court while holding that
H respondent no. 7 was not disqualified under sec. 9A of the Representation
410

r
SO MN ATH RA TH v. BIKRAM K. ARUKH 411

of the People Act, 1951 dismissed the petition on the ground that there would A
have been no "material effect" on the election by the presence of respondent
~o. 7. Hence the present appeal.

Allowing the appeal, the Court

HELD : 1. The nomination paper of respondent no. 7 was improperly B
rejected by the Returning Officer. Consequently the election of respondent
No. 1 - Returned candidate is set aside under sec. lOO(l)(c) of the
Representation of the People Aci, 1951. (418-D-E]

. 2.1. Respondent No. 7 does not suffer any disqualification for being
chosen as a member of the Legislative Assembly under sec. 9A of the Act C
A person would be disqualified under sec. 9A of the Act if he has entered
into a contract with the appropriate Government in the course of his trade
or business for supply of goods or for execution of any works undertaken
by Government. In the instant case, respondent No. 7 being a mere licensee
under the Public Distribution System cannot be disqualified from contesti~g D
the election. [418-A-B; 415-G]

2.2. It cannot be accepted that under section 9A of the Act, the expression
'works' would also include' schemes' of the type of Public Distribution
System. (417-B]
E
Dewan Joyna/ Abedin v. Abdul Wazed alias Abdul Wazed Miah & Ors.,
(1988] Supp. SCC 580, (1987) 2 SCALE 1447 and Ranjeet Singh v.
Harmohinder Singh Pradhan, {1999) 3 SCALE 630, relied on.

3. The High Court having found rightly that the ground on which the
Returning Officer had rejected the nomination paper of respondent No. 7, F
did not d~ualify him from contesting the election, ought not to have proceeded
any .further on "material effect" of rejection. The improper rejection of a
nomination paper by itself and without anything more is a ground under
sec.lOO(l)(c) of the Act to declare the election void. No enquiry as to "material
effect" on account of the rejection of the nomination paper is required to be G
made under Sec.lOO(l)(c) of the Act. The enquiry whether the result of an
election has been materially affected insofar as the Returned Candidate is
concerned is required in the cases covered by Sec.lOO(l)(d) of the Act
(415-G-H; 416-A-B)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 335 of H
412 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

· A 1999.
From the Judgment and Order dated 23 .12.98 of the Orissa High Court
in E.P. No. 13 of 1995.

S. Balakrisbnan, Debasis Mishra, Bhubnesh Singh and D.K. Thakur for
B the Appellant.

J.R. Das, K.K. Mahalik and K.N. Tripathy for the Respondents.

The Judgment of the Court was delivered by

C DR. A.S. ANAND, CJ. Aggrieved by the dismissal of his election
petition, challenging the election of the returned candidate-respondent No. 1,
vide order of the High Court dated 23rd of December, 1999, the appellant has
filed this appeal.

·For the purpose of this appeal however only a few facts are relevant
D and necessary to be noticed.

The last date for filing nominations in respect of the Assembly
Constituencies in the State of Orissa for the elections held in the year 1995
was 17th of January, 1995. Thirteen persons including the appellant and the
E respondents filed their nomination papers for 66, Bhanjnagar Assembly
Constituency. At the time of scrutiny of the nomination papers on l9th
January, 1995, the Returning Officer rejected the nomination papers of
respondent Nos. 5, 6 and 7. While the nomination papers of respondent Nos.
5 and 6 were rejected by the Returning Officer on the ground that the same
were found to be defective, the nomination papers of respondent No. 7-
F Panchanan Das was rejectea on the 'ground that "Candidate is a PDS dealer"
of Bhanjnagar Ward No. 13. Hence rejected."

After polling, results of the elections were declared ~d respondent No.
I was declared successful and elected by a margin of 1567 votes.
G
An election petition was filed by the appellant on i6th of Aprll, 1995
calling in ques~on the election of respondent No. 1, both on the ground of
commission of cbfrupt practices as also for improper rej~on of the nomination
papers of respondent Nos. 5, 6 and 7. The election p~tion was resisted ~d
written statement was filed by respondent No. 1. On the basis of pleadin~s
H of the parties, certain issues came to be framed. However, for the purpose of

..
SOMNATH RATH v. BIKRAM K. ARUKH [DR. A.S. ANAND, CJ.] 413
this appeal, the following issues only require our consideration: A
"(1) Whether the nomination of any one of the candidates namely .
Shri Pratap Chandra Swain, Shri Rajendra Kumar Sahu and Shri
Panchanan Das has been improperly rejected by the Returning
Officer and as such the election of Bikram Keshari Arukh, the
returned candidate (respondent No. 1) for the 66-Bhanjanagar B
Assembly Constituency is void?
(2) Whether the petition as laid is maintainable?"
Evidence was led by the parties in respect of these issues.
We shall take up the question relating to the ~ejection of the nomination C
paper of Shri Panchanan Das-respondent No. 7 only and do not rmd it
necessary to consider either the grounds of rejection or the effect thereof
insofar as Shri Pratap Chandra Swain or Shri Rajendra Kumar Sahu-respondent
· · Nos. 5 and 6 respectively are concerned because the findings recorded by the
High Court in their case have not been seriously assailed before us. Findings
regarding the rejection of nomination paper of respondent No. 7 have, however, D
been vehemently assailed.
Insofar as respondent No. 7, Shri Panchanan Das is concerned, the
material averments regarding the improper rejection of his nomination paper
are contained in para 10 of the election petition, which reads thus :
E
"IO. That the nomination of Shri Panchanan Das S/o Late Saita Das,
At - Sanatota Sabi, Bhanjanagar, Dist. Ganjam, Respondent No. 7 has
been rejected on the ground that the candidate is the P.D.S. Dealer of
Ward No. 13. The rejection Order is illegal and improper because
P.D.S. Dealership is not a disqualification for being chosen as a
member of the Legislative Assembly. Besides, there was no evidence F
or material before the Returning Officer at the time of scrutiny to come
to such a conclusion. In course of his trade or business through
P.D.S. Dealership of Ward No. 13 under the Bhanjanagar, N.A.C., Sri
Das had nothing to do with the State Government and much less he
was interested in any subsisting contract with the State Government G
which could have disqualified him under the provisions of the
Representation of the People Act, 1951. He had not entered into any
contract at all with the State Government. His appointment as such
was under the recommendation of committee set up by the N.A.C. He
was to purchase commodities at prices fixed and on selling get a
commission which is also fixed. Therefore there is no scope for any H
414 SUPREME COURT REPORTS (1999) SUPP. 2 S.C.R.

A advantage being derived even if one becomes a member of the
Legislative Assembly. In the circumstances, therefore, the nomination
of Sri P<µichanan Das having been improperly rejected the election of
the Respondent No. I is liable to be declared void....."
In the written statement filed by respondent No. I, the response to the
B averments contained in para I 0 of the election petition is as follows:
"15. That the averment made in paragraph IO of the election petition
that the nomination paper of Sri Panchanan Das, the Respondent No.
7 has been improperly rejected is false and denied and the petitioner
is put to strict proof thereof. The Returning Officer has acted legally
C and within his power and authority in rejecting the nomination paper
in question as the same was violative of the relevant provision of the
Act and he has made an endorsement to that effect on this nomination
paper. Thus this averment is denied."
The learned Designated Judge of the High Court after considering the
D evidence on. the record and taking note of various judgments including the
judgment of the Andhra Pradesh High Court in Cheekati Parasuram Naidu
v: Mariserla Venkatarami Naidu and Anr., AIR (1985) AP, 169 opined : ··

"The t..Msactions between the State and respondent No. 7 do not
constitute supply by the latter to the State. Therefore, it cannot be
E said that respondent No. 7 was disqualified in terms of Section 9A."
Thus, the learned Designated Judge found that the ground on which
the nomination paper had been rejected by the Returning Officer was not
valid.

F The learned Designated Judge of the High Court, while dismissing the
election petition, inspite of the above finding· observed :

"In view of the legal position there can be no doubt that improper
rejection nullifies the election. But some of the peculiar features as
highlighted above need to be carefully analysed. No doubt an election
G dispute can be rai~ed by a candidate or an electorate of the
constituency, because the election involves each of the electorates as
well as the contestants. Judged in that background, the election
petition has been held to be maintainable as discussed above.

Improper rejection of a nomination affects the election. But the
H person who is really affected is the person whose nomination paper
SOMNATH RATH v. BIKRAM K. ARUKH [DR. A.S. A~AND, CJ.) 415

has been rejected In the case at hand, he himself states that his A
.• presence in the field ofcontest would have hardly made any difference
and would not have materially affected the election of the elected
candidate. He has stated with reference to his past performance in
various elections that he would not have polled more than 200 to 300
votes. A candidate is the best person to say about his election B
prospects. When the candidate himself states that he would have got
about 200 to 300 votes had he contested, it would be not proper to
accept the version orthe election petitioner that his presence in the
election contest would have materially affeeted the result." (Emphasis
ours)

The learned Designated Judge also opined :
c
"Respondent No. 7 Panchanan Das, whose nomination has been
rejected, has stated that he did not think it proper to file election
petition as he was satisfied that his presence fu the field of contest
would not have made the position different."
D

- In our opinion, the above approach of the High Court was wholly
erroneous.

Section 100 (l) (c) of the Representation of the People Act, 1951
(hereinafter referred to as 'the Act') provides as under :
E
"lOO. Grounds for declaring election to be void:- (1) Subject to the
provisions of sub-section (2) if the High Court is of opinion-

(a) ............ .

(b) ............ . F
(c) that any nomination has been improperly rejected; or ..."

The High Court having found and, in our opinion, rightly that the
ground on which the Returning Officer had rejected the nomination paper of
respondent No. 7, viz., that. he was a dealer under the Public Distribution
System did not disqualify him from contesting the election, ought not to have
G
proceeded any further because it was essentially a case where the· rejection·
of the nomination paper by the Returning Officer, insofar as respondent No.
7- Shri Panchanan Das is concerned, was improper because respondent No.
..: '1 was not disqualified in terms of Section 9A of the·, Act. The improper
rejection of a nomination paper by itself and without anything more is a H
416 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A ground under Section 100 (l)(c) of the Act to declare the election void. No
enquiry as to "material effect" on account of the rejection of the nomination
paper is required to be made under Section 100 ( 1)(c) of the Act. The enquiry
whether the result of an election has been materially affected insofar as the
Returned Candidate is concerned is required in the cases covered by Section
B 100 (I)(d) of the Act.

Learned counsel for the Returned Candidate, however, asserted that the
finding of the Returning Officer for rejecting the nomination paper was correct
and the High Court's finding in that behalf was not correct. Learned counsel
submitted that the case of respondent No. 7, a dealer under the Public
C Distribution Scheme, was covered by Section 9A of the Act. We are unable
to accept this submission.

Section 9A of the Act reads, thus :

"9A. Disqualification for Government contracts, etc.-A person shall
D be disqualified if, arid for 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
works undertaken by, that Government.

E EXplanation - For the purposes of this section, where a contract has
been fully performed by the person by whom it has been entered into
with the appropriate Government, the contract shall be deemed not to
subsist by reason only of the fact that the Government has not
performed its part of the contract either wholly or in part."

F Section 9A of the Act has come up for consideration of this Court in
Dewan Joynal Abedin v. Abdul Wazad alias Abdul Wazad Miah and Ors.,
[1988] Supp SCC 580 = (1987) 2 SCALE, 1447 and Ranjeet Singh v. Harmohinder
Singh Pradhan, (1999) 3 SCALE, 630. Analysing Section 9A of the Act, this
Court has consistently taken the view that a person would be disqualified
G under Section 9A of the Act, 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 nominations and :

(1) the contract is one for supply of goods to the Appropriate
Government; and
H
SOMNATH RATH v. BIKRAM K. ARUKH [DR. A.S. ANAND, CJ.] 417
(ii) the contract is for the execution of any works undertaken by that A
Government ............ .

We find ourselves unable to accept the submission of learned counsel
for respondent No. I that in Section 9A of the Act, the expression 'works'
would also include 'schemes' of the type of Public Distribution System. The
expression 'works' as used in Section 9A was interpreted in Dewan Joynal B
Abedin (supra) wherein this Court opined :

" ..... The word 'works' in the expression in 'execution of any works'
appearing in Section 9A of the Act is used in the sense of 'projects',
'schemes', 'plants', such as building works, irrigation works, defence C
works etc. Respondent I in this case had not undertaken to carry on
any such work. According to the Shorter Oxford 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
a
operations; fortified building; a defensive structure, fortifications; D
any of the several parts of such structure". The words 'works' used
in entry 35 of List II of the Seventh Schedule of the Constitution of
India which reads as "works, lands and buildings vested in or in the
possession of the State" is used in the same sense. The running of
boats across in land waterways is a topic which falls under entry 32 E
of List III of the Seventh Schedule which reads thus :

. "Shipping and navigation on inland waterways as regards mechanically
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,
therefore, difficult to hold that when a person acquires the right to
F
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 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 amen<;lment in 1958 had been there in G
Section 9-A of the Act."

The above observations are a complete answer to the submission made
by learned counsel for respondent No. I.

From the pleadings of the parties and particularly averments contained H
418 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A in para 10 of the election petition, it is obvious that the respondent No. 7 -
Shri Panchanan Das did not have any subsisting contract in the course of
his trade or business with the Appropriate Government either for the supply
of goods to the Government or for the execution of any works undertaken by
that Government. He was a mere licensee under the Pllblic Distribution System.
B Such a person does not suffer any disqualification for being chosen as a
Member of the Legislative Assembly under Section 9A of the Act.

Since the only ground on which the Returning Officer rejected the
nomination paper of Shri Panchanan Das, respondent No. 7 was that "he was
a deaJer under. the Public Distribution System" and the High Court rightly
C found that respondent No. 7 was not disqualified under Section 9A of the
Act, it ought to have been held that the nomination paper of respondent No.
?had been improperly rejected and as a consequence Section 100 (I)(c) of
the Act was attracted to avoid the election.

The improper rejection of the nomination paper by itself being suffieient
D to invalidate the election, the High Court under the circumstances fell in error
in dismissing the election petition and not invalidating the election of the
Returned Candidate on the ground of improper rejection of the nomination
paper of respondent No. 7 - Shri Panchanan Das.

As a result of the above discussion, this appeal succeeds and is
E allowed. Consequently, the election petition would stand allowed to the extent
indicated above. The election of the Returned Candidate-respondent No. 1 is,
hereby, set aside under Section 100(1) (c) of the Act. We, however, leave the
parties to bear their own costs insofar as this appeal is concerned.

S.VKl Appeal allowed.