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1958 Supreme(MP) 227
High Court Of Madhya Pradesh
M. Hidayatullah, C. J. and G. P. Bhutt, J.
GAURI SHANKER SHASTRI - Appellant
Versus
MAYADHARDAS RAMESHWARDAS - Respondents
First Appeal 10 Of 1958
Decided On : 09/23/1958
A.P.SEN, R.K.VERMA, R.P.Verma
A contract is discharged by breach by one of the parties and the rescission of the contract on accepting the breach by the other. The subsistence of contractual relations between the parties is contemplated by Section 7 (d) of the Representation of the People Act, 1951, and such relations cannot be said to be subsisting when both the parties have rescinded the contract.
Headnote:
ELECTION LAW - DISQUALIFICATION - CONTRACT WITH STATE GOVERNMENT - BREACH AND RESCISSION OF CONTRACT - SUBSISTENCE OF CONTRACT - REPRESENTATION OF THE PEOPLE ACT, 1951 - SECTION 7 (D).
Fact of the Case:
The appellant, Gourishankar Sastri, was elected to the general seat from the Charghoda double member Legislative Assembly constituency in the Raigarh district. The election was challenged by Mayadhardas on the ground that the appellant held a contract with the State Government and was disqualified under Section 7 (d) of the Representation of the People Act, 1951. The Election Tribunal accepted this contention and set aside the election.
Finding of the Court:
The court held that the contract between the appellant and the State Government was breached by the appellant and rescinded by the Deputy Commissioner. Therefore, the contract did not subsist as a contract for the supply of goods or for execution of any works. The court further held that the acceptance of the nomination paper of the appellant was valid and the election petition filed by the first respondent should be dismissed with costs.
Issues: Whether the appellant held a contract with the State Government and was disqualified under Section 7 (d) of the Representation of the People Act, 1951.
Ratio Decidendi: The court held that a contract is discharged in various ways, one of which is by breach by one of the parties and the rescission of the contract on accepting the breach by the other. The court further held that the existence of claims arising from or under the contract does not show that the contract itself is subsisting. The court also held that the subsistence of contractual relations between the parties is contemplated by Section 7 (d) of the Representation of the People Act, 1951, and that such relations cannot be said to be subsisting when both the parties have rescinded the contract.
Final Decision: The court allowed the appeal and reversed the decision of the Election Tribunal. The election petition filed by the first respondent was ordered to be dismissed with costs.
( 1 ) THIS appeal is by Gourishankar Sastri, a returned candidate to the general seat from the Charghoda double member Legislative Assembly constituency in tho raigarh district, whose election has been set aside by an order of the Election tribunal Raigarh, passed on 8-1-1958 in Election Petition No. 194 of 1957.
( 2 ) SEVEN persons contested the election for the two seats. The second respondent raja Lalit Kumar Singh was declared elected to the reserved seat. His election is no longer in dispute and no argument at the hearing was advanced against him. The appellant Gourishankar Shastri was elected to the general seat. The results of the election were declared on 9-3-1957 and the Gazette notification was issued on 1-4-1957. Though as many as 62 issues were framed in the case, the decision of the Tribunal rests upon issues nos l (a) and (b ). The contention of Mayadhardas, the election petitioner, was that the nomination paper of Gourishankar Shastri was wrongly accepted inasmuch as he held a contract with the State Government and was disqualified under Section 7 (d) o the representation of the People Act. The Tribunal accepted this contention applying a decision of their Lordships of the Supreme Court reported in Chatturbhuj Vithaldas jasani v. Moreshwar Parashram, 1954 SCR 817: (AIR 1954 SC 236 ). This formed the only subject of contention between the parties, all other issues decided against the election petitioner having been abandoned by him before us.
( 3 ) THE returned candidate is admittedly the proprietor of Manay Printing Press, raigarh. On 14-4-1955 he entered into an agreement (Exh. l-R-5) by which he undertook to print and supply Hindi Electoral Rolls of the Madhya Pradesh legislative Assembly in the Raigarh district. He deposited a sum of Rs. 500/- as security and agreed to complete the work according to the conditions of the contract "within 45 days of the day on which the Manuscript Electoral Rolls were delivered to him. "
( 4 ) REFORE the expiry of the period above indicated, he wrote a letter (Exh. l-R-2)on 21-5-1955 intimating the Deputy Commissioner, Raigarh, his inability to execute the printing of the Electoral Rolls for "certain unavoidable circumstances". In reply thereto, the Deputy Commissioner wrote a memorandum (Exh. l-R-3) on 31-5-1955. In that memorandum the Deputy Commissioner asked for the return of the manuscript copies of the Rolls and paper supplied for the work and commissioned his assistant election clerk to receive them. It is an admitted fact that these were returned and the work was executed by another printing press. The Deputy Commissioner ordered the recovery of Rs. 1,933/13/- from the appellant as arrears of land revenue being the extra cost for getting the Rolls printed elsewhere. The contention of the petitioner was that the returned candidate was disqualified under Section 7 (d) of the Representation of the People Act and the acceptance of the nomination paper was illegal. This plea was accepted by the learned Member of the Tribunal who declared the election to the general seat void. Hence the appeal.
( 5 ) IN reaching the above conclusion the Tribunal gave two reasons. The first was that the returned candidate having admitted that a contract was given to him, it was for him to plead and prove that the contract was not subsisting on the date his nomination was accepted and that in view of the fact that the date for the acceptance of the nomination paper was not pleaded nor proved the returned candidate had failed to discharge the burden which was upon him. The other reason was that till recovery of the extra charge and penalty had been effected the contract must be deemed to be subsisting and the disqualification contained in section 7 (d) of the Representation of the People Act must be held to be still operating.
( 6 ) AS regards the first point, it was conceded that the nomination papers were received and scrutinized after the Electoral Rolls were already pr
