Judgment

SHAH, J.-By order, dated March 20, 1968, we called for findings from the High Court of Madhya Pradesh on the following three issues :

"(1) Whether the work undertaken by the appellant under the contract, dated February 25, 1954, had been completed before January 19, 1967, departmentally or through other contractors ?

(2) If the work was not completed on January 19, 1967, has the project in respect of the incomplete work been abandoned ?

(3) If the project was not abandoned, was it intended to get the same completed through the appellant under the terms of the contract, dated February 25, 1954 ?"

The parties were given liberty to lead evidence on those issues. Accordingly the parties led oral evidence and produced a mass of documentary evidence.

2. The learned Judge found the first issue against the appellant ; on the second issue he held that the project was abandoned : and recorded on finding on the third issue.

3. The contest between the parties now centres round the second issue. Counsel for the respondent contended that the evidence led before the High Court cannot be considered because there was no clear plea raised in the reply to the election petition about abandonment or renunciation of the contract between the Government and the appellant, and that in any even the evidence does not justify a finding in favour of the appellant on that issue. In the judgment under appeal the High Court had observed that "the case in which neither party has insisted on the performance of the contract for an inordinate length of time and in such cases it. may be said that the parties have mutually abandoned the contract. In such a case, the contract may be treated as terminated or discharged by abandonment but a party relying on abandonment must expressly plead and give its particulars", and since the appellant "did not canvass in this case that there was mutual abandonment of the contract in question by the parties," the contention could not be accepted. But a person is disqualified from offering himself as a candidate at an election if at the date of the nomination there subsists a contract entered into by him in the course of his business with the appropriate Government for the supply of goods or for the execution of any work undertaken by that Government within the meaning of Section 9-A of the Representation of the People Act, 1951. The appellant was carrying on business as a building contractor and had in 1954 entered into a contract for the execution of works undertaken by the Government of India. To make out a case of disqualification it had to be established that the contract subsisted on January 19, 1967, when the nomination was filed by the appellant. The burden of proving that issue lay upon the respondent. By merely proving that the candidates had at some time in the past entered into a contract to execute works, the burden was not discharged ; it had further to be established that the contract was subsisting at the crucial date. In making that enquiry it was necessary to decide whether the contract was completed, or, if not completed, it was renounced. Whether there was a subsisting contract being the issue to be decided, the trial necessarily included an inquiry, even in the absence of an express plea, whether the contract was completed or determined at the crucial date. This Court has after hearing the parties called for a finding on the question whether there subsisted a contract on January 19, 1967, between the appellant and the Government of India and for that purpose to determine whether the contract of the year 1954 was renounced or abandoned. The parties have led evidence and the issue whether there existed a contract on the crucial date which disqualified the appellant must be decided.

4. Under the terms of the contract the appellant had undertaken to raise the height of the Burj to 46 feet. It is common ground that he did not raise the height of the Burj above 35 feet. The authorities were dissatisfied with the w