A person is not disqualified under Section 9-A of the Representation of the People Act, 1951, if the contracts entered into with the Government are not in his individual capacity or in the course of his trade or business, and the contracts are no longer subsisting at the time he files his nomination for an election.

R. N. MISRA, J.

( 1 ) THIS application under Section 100 (1) of the Representation of the People Act, 1951 (hereinafter referred to as me Act) seeks to challenge the election of the respondent to the Orissa Legislative Assembly from the Melchhamunda constituency of the district of Sambalpur.

( 2 ) THE last date for filing of nomination papers was 7-2-1971. Nomination papers were scrutinised on 9-2-1971. Objection was raised to the acceptance of the nomination paper of the respondent on the ground that he was disqualified under section 9-A of the Act. The Returning Officer overruled the objection and accepted the nomination paper of the respondent. Election was held on 5-3-1971 and the result of election was announced on 11-3-1971 declaring the respondent as duly elected. The election petition was Bled on 20-4-1971 challenging the election of the respondent on the ground that he was disqualified from being chosen as a member of the Legislative Assembly.

( 3 ) IN paragraph 2 of the election petition it has been stated that on the date of nomination the respondent had subsisting contracts with the Government of Orissa in respect of the following works executed within the Gaisilet Panchayat Samiti:--

(a) Construction of package village level worker's quarters at Gaisilet; (b) Construction of the lady village level workers quarters at borumunda; (c) Construction of the community recreation centre at Borumunda; (d) Construction of the Borumunda Canal; (e) Construction of the Mahila Samiti building at Borumunda. It is contended that the respondent was disqualified on that account from being a member of the Orissa Legislative Assembly.

( 4 ) THE respondent, on the other hand, has contended that there was no contract or subsisting contract with the State Government of Orissa making him disqualified for being chosen as a Member of the State Legislature. It has been further contended that the contracts in question were not entered into by the respondent in his individual capacity or in course of his trade or business, and he never derived any pecuniary benefit from the works. As such the respondent did not incur any disqualification under Section 9-A of the Act. The respondent also alleged that the election petition was liable to be dismissed under Section 83 (1) (a) of the Act as a concise statement of the material facts upon which the petitioner sought to rely was absent in the petition.

( 5 ) ON the pleadings the following issues were framed:-Issues (1) Is the election petn. maintainable? (2) Is it liable to be dismissed for non-compliance of Section 83 (1) (a)of the Representation of the People Act? (3) Had the respondent entered into any contract with the State government and in case there was such contract, was it in his individual capacity in course of trade or business? (4) Was the respondent disqualified under Section 9-A of the Representation of the People Act from contesting the election on the date of nomination? (5) Is the election of the respondent, void?

( 6 ) THE petitioner examined 5 witnesses in all including himself. The respondent examined 4 witnesses in all inclusive himself. On behalf of the petitioner Exhibits 1 to 24 have been marked and on behalf of the respondent Exhibits A to A/b have been marked. During hearing of the arguments of the election petition, Mr. Basu for the petitioner conceded that of the five contracts alleged to be subsisting items (a) and (d), namely, construction of package village level worker's quarters and construction of Borumunda Canal may be omitted from consideration. The petitioner thus confines his contention in regard to the alleged contracts relating to items (b), (c) and (e) of paragraph 2 of the election petition. I shaft now proceed to deal with the various issues.

( 7 ) ISSUE No. 1.--Though such an issue was raised on the pleadings in the written statement, this issue has not been pressed during trial. I would hold that the election petition which has been filed on a tenabl