ORDER
1. The facts of the case leading to this petition are simple. The petitioner was one of the candidates for election to the Mysore State Legislative Assembly from the Chennarayapatna Constituency. There were objections to the acceptance of his nomination paper on the ground that be had at the time a subsisting contract with the Government of Mysore. The Returning Officer overruled and rejected the objection and the petitioner was declared to have been duly nominated. The petitioner contested the elections held on 16-1-1952 and was thereafter declared duly elected and the fact was notified in the official Gazette.
2. The 1st respondent filed an election petition calling in question the election of the petitioner. He urged several grounds in support of the petition but it will be unnecessary to refer to all of them as all the members of the Tribunal were unanimous in overruling all the grounds excepting one. That ground related to the existence of a contract for the supply of goods between the Bharath Trading and Industrial Company of which the petitioner was a partner and the Government of Mysore at the time the petitioner filed his nomination paper. The majority of the Tribunal gave a finding that there was a subsisting contract between the petitioner's firm and the Government of Mysore at the time the petitioner filed his nomination paper and on that ground declared the whole election void and set aside the election of the petitioner, it will be necessary to state at this stage that the Chairman of the Tribunal differed from the majority of the Tribunal and gave a finding to the effect that there was no subsisting contract between the petitioner and the Government of Mysore at the time the petitioner filed his nomination paper.
3. The petitioner has therefore approached this court for the issue of a writ under Article 226 of the Constitution for quashing the proceedings of the Tribunal.
4. In support of his petition the petitioner has urged the following two grounds:
(1) The decision of the majority of the Tribunal rests upon a matter that is not put in issue thereby violating the fundamental principles of natural justice;
(2) The majority of the Tribunal in holding that there was an implied contract acted contrary to law and in an unreasonable manner and in opposition to the case set up by the petitioner (1st respondent before us) himself.
5. to 10. '(See paras. 5 to 10 in AIR 1954 Mys 102).
11. The learned counsel for the 3rd and 4th respondents next urged on the strength of the case reported in -- : [1953]4SCR1144 (I)', that no writ could be issued to the Election Commission, I am unable to accept this contention. The decision referred to by the learned counsel 'Saka Venkatarao's case, (I)', does not appear to me to be apposite for that was a case where a writ was sought against the Election Commission to prevent the Governor from performing the duties enjoined on him under Article 192(2) of the Constitution which reads as follows :
'192(2)-- Before giving any decision on any question (whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in Clause (I) of Article 19(1), the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion'.
The duty is enjoined on the Governor to obtain the opinion of the Election Commission and the Election Commission in furnishing its opinion to the Governor cannot be deemed to be doing any act or performing any duty or functioning within the jurisdiction of the Madras High Court. The facts in that case are entirely different and nave no bearing or similarity to the facts of the case before us. The Election Commission in the case before us has to perform certain duties within the jurisdiction of tins court, such as for instance the publication of the order of the Election Tribunal in the Mysore Gazette.
This point has besides been covered by a decision of this court in -- 'Bangalore Woollen, Cotton and Silk Mills Co., Ltd. v. Labour Appellate Tribunal of India', AIR 1953 Mys 59 (J). The contention that the Election Tribunal has become functus officio and that as such it cannot be made a party, even if accepted, does not in my opinion in any way affect the effectiveness of a. writ that may be issued to quash the proceedings of the Election - Tribunal. The records of the proceedings of the Election Tribunal are lodged before the District Judge of the Division in which the election hag taken place and are at present before this court. There does not appear to be any specific provision in the Representation of the People Act to support the view that the Election Tribunal becomes functus officio after the pronouncement of the order. The objections are accordingly rejected.
12. *(See para. 12 in AIR 1954 Mys. 102).
13. The learned counsel for the petitioner submitted that the Election Tribunal, to support its order, went into and considered allegations not definitely set forth in the pleadings of the parties and not specifically put into issue. He further submitted that the Tribunal committed a flagrant violation of law in spelling the existence of an implied contract for the supply of goods between the petitioner and the Government of Mysore at the time the petitioner filed his nomination paper. It was also urged that there are manifest errors, relating to the existence of necessary and relevant facts, apparent on the face of the record on which the Election Tribunal has based its findings.
14. A perusal of the allegations in the Election Petition and the issues (as stated by the Election Tribunal) make it clear that the pleadings and the issues are not as satisfactory as they should have been. The averments in paragraph 3 of the petition arc:
'As far as the petitioner is aware, this tender as well as the acceptance is not limited for any particular period nor has the standing order been terminated in any way by either the Firm or by the Government of Mysore through the Deputy Commissioner, Hassan, who accepted the standing order as stated above. On the contrary on 8-9-51, the Deputy Commissioner, Hassan, issued directions to the Bharathi Trading and Industrial Company, Hassan, to supply 8000 flat tiles 200 ridge tiles required for the reconstruction of the house destroyed by accidental fire in Sulgalale village in Belur Taluk, Hassan District. The Amildars of Belur was requested to instruct the Special Revenue Inspector to take delivery of the tiles and issue them to the grantees and also to make arrangements to pay the bills in his office. 'It will be seen that there was no other correspondence for any fresh contracts springing up in this connection between the Firm and the Deputy Commissioner. Hassan', and the petitioner states that it is and must be deemed that the 'order for the supply of the above materials dated 8-9-51 must be in pursuance of the standing contract referred to above.' '
It is thus clear that the case which the petitioner (respondent 1 before us) specifically put forward was that there was no contract except the one admitted by him, viz., a contract for the supply of goods for the year 1950-51. This contract ended on 31-3-1951. The two contracting parties, viz., the petitioner and the Government have both stated that the contract had ended. The earnest money deposited by the petitioner for the performance of the contract was admittedly returned to the petitioner by the Government and the accounts relating to the contract between the petitioner and the Government Were also admittedly settled long before the date on which the petitioner filed his nomination papers.
There can therefore be no doubt that the said contract between the petitioner and the Government was not in force on the date the petitioner filed his nomination paper. The Bharath Trading Company, of which the petitioner was a partner, had not admittedly tendered for the supply of goods (tiles) to the Government for the year 1951-52 but that, on the other hand, one Krishniahsetty had tendered for the contract of supply of goods to the Government for the year 1951-52 and the same had been accepted by the Government. This contract between the Government and Krishniahsetty was formally embodied in an agreement (Ex. 2D). The Election Tribunal in spite of all this and the petitioner's own averments in para. 3 extracted above took upon itself the task of considering the question whether there was an implied contract for the supply of goods (tiles) to the Government for the period 1951-52 and gave a finding that there was such an implied contract for the supply of goods notwithstanding the fact that the pleadings did not contain a specific averment that there was an implied contract for the supply of goods for the year 1951-52.
15. The finding of the Election Tribunal that there was an implied contract for 1951-52 is based on the admitted fact that when Krishniahsetty failed to supply the goods required by the Government according to the contract entered into by him with the Government, the Deputy Commissioner purchased the tiles from the Bharath Trading Company as per the letter of the Rural Development Commissioner (No. R. 635-39, dated 13-8-1951). This will be clear from the order of the Election Tribunal at page 25:
'....... .general permission had been accorded to purchase tiles from the local factories on failure of the approved Firm to supply tiles of good quality within the time limit specified by him and has Instructed him to adopt the same in the present case.'
The fact that on the failure of Krishniahsetty to supply goods the Deputy Commissioner, in pursuance of the letter referred to above, requested the Amildars to purchase goods from the Bharath Trading Company and that, in pursuance of that direction, the Amildars place orders with the Bharath Trading Company for the supply of tiles does not and cannot lead to the conclusion that there was an implied contract between the Government and the Bharath Trading Company for the supply of goods. The distinction between a contract for the supply of goods and supply of goods has obviously been last sight of entirely by the Election Tribunal. A contract for the supply of goods may and will result in the supply of goods but a supply of goods will not result in the creation of a contract for the supply of goods. It is obvious and cannot be disputed that, if the Bharath Trading Company failed to supply the goods according to the order placed by the Amildars, the other party to the contract, viz., the Government, could not have enforced that supply through courts. This position makes it clear that the finding of the learned Election Tribunal that there was an implied contract for the supply of goods for the year 1951-52 is manifestly wrong.
16. The Tribunal has thus considered the question of the existence of an implied contract not alleged in the pleadings and not specifically put into issue and then given a finding which is dead against the admitted facts. The Election Tribunal has also, as shown above, committed flagrant error of law in inferring an implied contract on the mere fact that the Bharath Trading Company supplied goods according to the orders placed from time to time by the Amildars who had been requested by the Deputy Commissioner to make tlie purchase from Local firms. Section 7(d) of the Representation of the People Act reads-
'7(d) if, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account, he has any share or interest in a contract for the supply of goods to, or for the execution of any works or the performance of any services undertaken by, the appropriate Government; (a person snail be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative council of a State)'.
There was as pointed out above no subsisting contract for the supply of goods at the time the petitioner filed his nomination paper. The order of the Election Tribunal, based on the finding that there was an implied contract, is both an error apparent on the face of the record and a flagrant error of law. The consideration of allegations not definitely pleaded and not specifically put into issue and a finding thereon is besides an excessive exercise of jurisdiction.
17. The very same objection to the nomination of the petitioner had been taken at the time of scrutiny and had been overruled and rejected by the Returning Officer. There can be no doubt that the order of the Election Tribunal has resulted in grave and manifest injustice to the petitioner.
18. We accordingly issue a writ of certiorariand quash the proceedings and the order dated24-2-1953 Of the Election Tribunal. The costs ofthe petitioner will be paid by the 1st respondent.Advocates fee Rs. 100/- only.
19. Application allowed.