Judgment

HIDAYATULLAH, C.J.I. :- This is an appeal from the judgment and order of the High Court of Mysore, September 15, 1967, in an election matter in which the present appellant was the election petitioner. The election concerned the Yadagiri constituency and was held in February 1967, during the last general elections. To begin with, there were seven candidates. Of these five withdrew leaving the seat to be contested by the appellant and the first respondent here. The first respondent was returned as the successful candidate having obtained 4000 and odd votes in excess of his rival. On March 30, 1967, the defeated candidate preferred an election petition which has given rise to the present appeal. The election petition was dismissed by the High Court and in this appeal, the election petitioner claims that the decision of the High Court was erroneous and that the election of the first respondent was void for reasons to be stated hereafter.

2. The first respondent was a partner in a firm known as the Yadagiri Construction Company, Yadagiri. This firm held several contracts from the Mysore Government. In this appeal, we are concerned with two contracts only which were the construction of (1) a road known as "Nalwar Sonthi Road" in Gulbarga Division for a distance of four miles and (2) a dispensary building for the Primary Health Centre at Wadagara. The contention of the election petitioner was that these contracts were subsisting on January 20, 1967 when the nominations were filed and the subsistence of the contracts with the Government rendered the election of the first respondent void. The election petitioner claimed that he was entitled to be declared elected after considering that the votes cast in favour of the 1st respondent as thrown away. The High Court in its judgment held that the contracts were not subsisting and that the election was therefore not affected.

3. The matter is one of fact but it is necessary, before we enter into an examination of the facts, to set out the law relating to disqualification of candidates on this ground. Under Sec. 9A of the Representation of the People Act, 1951 it is provided as follows:

"A person shall be disqualified if, and for so long as there subsists a contract entered into by him in 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.

Explanation: For the purpose 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."

4. It may be mentioned here that previously the section did not contain the Explanation. In Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram, 1954 SCR 817, the existence of the liability on the part of the Government to pay for a fully executed contract was held to be a disqualification. It appears that Parliament thought that since Government moves slowly and many bills remain outstanding for a long time, this part of the disability may be removed. The amendment, therefore, takes away from the ban of the section the subsistence of one side of the contract, viz., the performance thereof by Government by paying for the goods supplied or the work executed. In other respects, the law remains very much the same as it was when the ruling referred to above was given. We shall have to refer to certain observations in the ruling which in our opinion must be taken into account before reaching the conclusion whether the contract or contracts continued to subsist on the date on which the candidate offered himself for election. We shall now continue our narration of the facts.

5. As has been stated already, there were two contracts one for the construction of a road for a distance of four miles and the other for the construction of a disp