LOKNATH PADHAN Vs. BIRENDRA KUMAR SAHU

JUDGEMENT

(1.) 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 of the people and Naib Sarpanch that he had undertaken these works on behalf of the Gram Panchayat and not in his individual capacity in course of his trade or business. The contention of the respondent, therefore, was that S. 9A had no application in his case. It was also urged by the respondent that in any event these contracts had been fully performed by him before the date of nomination and his case was, therefore, covered by the Explanation to S. 9A. The respondent also contended in the alternative that even if the stand taken by the Block Development Officer on behalf of the Gaisilet Panchayat Samiti was correct, namely, that the respondent had failed to carry out his obligations under these contracts and the Government or the Gaisilet Panchayat Samiti had, therefore, become entitled to recover the amounts advanced to the respondent and for that purpose issued the requisition for certificates of recovery on 8th January, 1967, the case of the respondent was outside S. 9A because in that event the contracts were discharged by breach prior to 8th January, 1967 and were no longer subsisting at the date of nomination. The High Court trying the election petition took the view that the contracts in question were not undertaken by the respondent in his individual capacity in course of his trade or business, but they were undertaken on behalf of the Gram Panchayat in terms of the schemes envisaged in the Second Five Year Plan as the respondent was the leader of the people and Naib Sarpanch of the Gram Panchayat, and the disqualification under Section 9A was, therefore, not attracted in the case of the respondent. The High Court also held, relying on the evidence of two witnesses, that the contracts had been fully carried out by the respondent long before the date of nomination and the Explanation was, therefore, applicable and that took the case of the respondent out of the inhibition of S. 9A. The view taken by the High Court thus was that the respondent was not disqualified from contesting the election under S. 9A and on this view the High Court dismissed the election petition. Hence the present appeal under S. 116A of the Act.

(3.) Whilst the appeal was pending in this Court, the Orissa Legislative Assembly was dissolved by the Governor on 3rd March, 1973 under Art. 174(2)(b) of the Constitution. The respondent, therefore, raised a preliminary objection at the hearing of the appeal before us that in view of the dissolution of the Orissa Legislative Assembly, it was academic to decide whether or not the respondent was disqualified from being a candidate under S. 9A and we should accordingly decline to hear the appeal on merits. The argument of the respondent was that unless there is a living issue between the parties the Court would not proceed to decide it:it would not occupy its time by deciding what is purely an academic question which has no sequitur so far as the position of the parties is concerned. Here, contended the respondent, even if the appellant was able to satisfy the Court that on the date of the nomination, the respondent was disqualified under Section 9A, it would be a fultile exercise, because the Orissa Legislative Assembly being dissolved, the setting aside of the election of the respondent would have no meaning or consequence and hence the Court should refuse to embark on a discussion of the merits of the question arising in the appeal. We think there is great force in this preliminary contention urged on behalf of the respondent. It is a well settled practice recognised and followed in India as well as England that a Court should not undertake to decide an issue, unless it is a living issue between the parties. If an issue is purely academic in that its decision is on way or the other would have no impact on the position of the parties it would be waste of public time and indeed not proper exercise of authority for the Court to engage itself in deciding it. Speaking for the House of Lords, Viscount Simon, L.C., said in the course of his speech in Sun Life Assurance Co. of Canada v. Jervis, 1944 AC 111" I do not think that it would be a proper exercise of the authority which this House possess to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way", and added:"....it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue." This statement must apply equally in case of exercise of appellate jurisdiction by this Court. It would be clearly futile and meaningless for the Court to decide an academic question, the answer to which would not affect the position of one party or the other. The Court would not engage in a fruitless exercise. It would refuse to decide a question, unless it has a bearing on some right or liability in controversy between the parties. if the decision of a question would be wholly ineffectual so far as the parties are concerned, it would be not only unnecessary and pointless but also inexpedient to decide it and the Court would properly decline to do so. In the present case, the Orissa Legislative Assembly being dissolved, it has become academic to consider whether on the date when the nomination was filed, the respondent was disqualified under S. 9A. Even if it is found that he was so disqualified, it would have no practical consequence, because the invalidation of his election after the dissolution of the Orissa Legislative Assembly would be meaningless and ineffectual. It would not hurt him. The disqualification would only mean that he was not entitled to contest the election on the date when he filed his nomination. It would have no consequences operating in future. It is possible that the respondent had a subsisting contract with the Government of Orissa at the date of nomination, but that contract may not be subsisting now. The finding that the respondent was disqualified would be based on the facts existing at the date of nomination and it would have no relevance so far as the position at a future point of time may be concerned, and therefore, in view of the dissolution of the Orissa Legislative Assembly it would have no practical interest for either of the parties. Neither would it benefit the appellant nor would it affect the respondent in any practical sense and it would be wholly academic to consider whether the respondent was disqualified on the date of nomination.