Judgment

BHAGWATI, J.:- This appeal is preferred under S. 116A of the Representation of the People Act, 1951 (hereinafter referred to as the Act) against the judgment of the Orissa High Court dismissing an election petition filed by the appellant challenging the election of the respondent to the Orissa Legislative Assembly from Melchhamunda constituency in Sambhalpur district of the State of Orissa.

2. The facts giving rise to the appeal may be briefly stated as follows: There were general elections to the Orissa Legislative Assembly sometime in the beginning of March, 1971. The last date for filing nomination papers was fixed on 7th February, 1971 and on or before that date the appellant and the respondent both filed their respective nomination papers for the seat from Melchhamunda constituency. On 9th February, 1971, which was the date fixed for scrutiny of the nomination papers, the appellant raised an objection against the nomination of the respondent on the ground that he was disqualified under S. 9A of the Act. Section 9A provides inter alia that 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 for the execution of any works undertaken by that Government. There is an explanation to this section which says that 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. The allegation of the appellant was that the respondent had entered into five contracts with the Government of Orissa for the execution of works undertaken by that Government and these contracts were still subsisting and the respondent was, therefore, disqualified from contesting the election under S. 9A. This objection raised on behalf of the appellant was overruled by the Returning Officer and the nomination of the respondent was accepted. The polling thereafter took place on 5th March, 1971 and the respondent was declared elected on 11th March, 1971. The appellant thereupon filed an election petition in the High Court of Orissa calling in question the election of the respondent on the ground that he was disqualified from being elected as a member by reason of Section 9A. The case of the appellant, as laid down in the election petition, was that, at the date of nomination five contracts were subsisting between the respondent and the Government of Orissa in respect of the following works entrusted through the Gaisilet Panchayat Samiti (1) construction of the Mahila Samiti building at Borumunda, (2) construction of the community recreation centre at Borumunda, (3) construction of the village level lady workers quarters at Borumunda, (4) construction of a package village level workers quarters at Gaisilet and (5) construction of the Borumunda cannal, and on account of the subsistence of these five contracts the disqualification under S. 9A was attracted. Though the appellant relied on subsistence of these five contracts in the election petition, he conceded at the time of the arguments that contracts (4) and (5) may not be taken into account and rested his case solely on the ground that contracts (1) to (3) were subsisting between the respondent and the Government of Orissa.

The respondent denied that he had entered into any of these contracts with the Government of Orissa in the course of his trade or business or that any such contract was subsisting between him and the government of Orissa at the date of nomination. The respondent alleged that the works undertaken by him under contracts (1) to (3) were part of the Second Five Year Plan and they were to be carried out by the Gram Panchayat on the basis of 50% subsidy from the Government and 50% contribution by the people in terms of money or labour and it was as leader