B.L. Narasimham, C.J.
1. This is an appeal under Section 116A of the Representation of the People Act 1951 against the judgment of the Election Tribunal, Balasore, declaring the election of the appellant to the Orissa State Legislative Assembly from Basta Constituency of Balasore, to be void.
2. The appellant, the respondent and one Prankrushna Das were rival candidates for a seat in the Orissa State Legislative Assembly from Basta Constituency, during the last general election held in March 1957, and the appellant was duly declared elected. The respondent filed an election petition challenging the validity of the appellant's election' on the following grounds:
(i) The appellant had an 'interest in a contract for the execution of work undertaken by Government' and was therefore disqualified under Section 7(d) of the Representation of the People Act 1951 (hereinafter referred to as the Act);
(ii) The appellant was guilty of bribery, under Sub-section (1) of Section 123 of the Act because he engaged paid canvassers who were themselves voters in the constituency, with a view to induce the voters to vote on his behalf;
(iii) The appellant did not maintain the accounts of his election expenses in the manner laid down in Section 77 of the Act and was therefore guilty of corrupt practice under Sub-section (6) of Section 123 of the Act.
3. The learned Election Tribunal upheld the first contention, but rejected the other two. The respondent has also filed a cross-objection against the findings of the Tribunal which were against him.
4. The appellant is a prominent non-official gentleman of village Irda, P. S. Singla, in the district of Balasore owning about 150 acres of land. It is admitted that on the 11-11-1955 he entered into an agreement (Ext. 3/1) with the Subdivisional Officer, Sadar, Balasore undertaking to construct a dispensary building in village Irda, on receipt of a sum of Rs. 9300/-from the Government. The agreement may be quoted in full:
'I, Shri Akshaya Narayan Praharaj, son of Ch. Golak Narayan Praharaj, by caste Brahmin and resident of village Irda, P. O. Irda, Police Station Singla in the district of Balasore, having been allowed a subsidy of Rs. 9300/- (Rupees nine thousand and three hundred only) by the State Government of Orissa to be expended on the works of benefit scheme relating to the dispensary building in the village Irda of P. S. in the district of Balasore and having received an advance of Rs. 2000/- (Rupees two thousand only) towards the subsidy from the Subdivi-sional Officer, Balasore, do hereby agree that the condition specified below, shall be binding on me, my heirs and representatives.
CONDITIONS.
(1) That I shall start the work on the Local Development Scheme mentioned above for which the said subsidy has been allowed and the said advance has been received by me within .00 seven days of the receipt of the advance money.
(2) That I shall carry on the work on the scheme diligently and according to plan and specifications approved by the Collector of the District and shall complete the work within 31-3-1956, (3) That the advance and subsequent advance if any shall be utilised in the execution of the above work only (4) That only (?) per cent of the bills of the cost of work done as certified by the gazetted officer in charge of the project shall be adjusted against the advance money, (5) That if it is approved (?) to the satisfaction of the S. D. O. Balasore (a) that the work on the above scheme has not been started by me within the period specified in Clause (1) above, or (b) that enough afflicted (?) has been shown by me in the execution of the project, or (c) that, the work on the project is not being carried on according to sanctioned plan and specifications or (d) if the work on the scheme is not completed within the period specified in Clause (2) above, the aforesaid sum of Rs. 2000/- received as advance from the S. D. O. Balasore and any other subsequent other (?) advance to be made for the purpose, shall be recoverable from me forthwith with interest at 6 1/2 percent per annum from the date of advance as Public Demand under the provision of the Bihar and Orissa, Public Demand Recovery Act, 1914.
Sd/- Akshaya Narayan Praharaj.
11-11-55.
Witness :--
1. Harekrushna Das, Assistant Headmaster, Banadlnga M. E. School, Irda,
2. Subodh Chandra Ganguly, L.M.C. (16) M. O. Irda Dispensary.
It will be noticed that the sum of Rs. 9300/-advanced by Government was described as a 'subsidy' given to the appellant to be expended on the construction of the said dispensary. The sum was to be paid in instalments on receipt of certificates from the gazetted officer in charge of the project about the progress of construction work according to the plan and specifications approved by the Collector of the District. By the last clause of the agreement the appellant undertook to repay the entire sum advanced to him with interest at 6 1/2 % per annum if the work was not done in accordance with the approved plan and specifications. This agreement was accepted by the Subdivisional Officer on the same date, viz., 11-11-1955 as will be clear from his endorsement on the agreement itself.
The order-sheet of the Subdivisional Officer dealing with this case is Ext. 3 which shows that on certain subsequent dates, viz. 9-1-1956, 28-2-1956, 27-4-1956 and 6-8-1956, the appellant was given further instalments by way of advances in pursuance of the agreement. The Order dated 6-8-1956 which is material for our purposes may be quoted:
'6-8-56: D. O. Bill prepared for Rs. 10,222-7-0. The agent was previously paid Rs. 8000/- and he has now applied for further advance.
Pay him Rs. 1000/- (one thousand only) and inform him to furnish Completion Certificate on receipt of which final payment be made.
Sd/-R. S. Das,
S.D.O. Sadar
5. It is thus clear that out of the original sum of Rs. 9300/- promised as subsidy a sum of Rs. 9000/- was paid to the appellant by 6-8-1956 leaving a balance of Rs. 300/- only. The Sub-divisional Officer directed the appellant to furnish a completion certificate to show that the work was completed in accordance with the approved plans and specifications, and made it absolutely clear that final payment will be made only on receipt of that certificate.
6. The last date for presentation of nominatiori papers of elections to the State Legislative Assembly was 29-1-1957, The appellant filed his nomination paper on 28-1-1957 before the Sub-divisional Officer who was the Returning Officer. It as admitted that the completion certificate in respect of Idra dispensary building was not filed till 13-8-1957 vide Ext. 3/2. The appellant's case however was that he had completed the construction of the building long before the date of nomination, namely 29-1-1957 and that the delay in settling his accounts was due to the delay on the part of the Sub-divisional Officer and his subordinate officers in checking the work and issuing the completion certificate.
7. On 1-2-1957, when the Sub-divisional Officer began to scrutinise the nominations, one of their rival candidates, Shri Prankrushna Das, objected to the candidature of the appellant saying that he was disqualified under Section 7(d) of the Act as the contract between the appellant and the Government regarding the construction of Irda dispensary was still subsisting. The learned Advocate for the appellant there-upon asked the Sub-divisional Officer for time till the next day.
On the afternoon of 1-2-1957, however, the attention of the Sub-divisional Officer was invited to a petition (Ext. A) purporting to have been dated 27-1-1957 in which' the appellant while admitting that he was entitled to a sum of Rs. 300/-from the Government towards final payment of the bill relating to the construction of Irda dispensary, renounced his claim for the same and requested the Sub-divisional Officer to treat the account as finally settled. According to the respondent, this document was brought into existence only on 1-2-1957 and ante-dated.
This question will be considered in detail later on. On 2-2-1957 the Sub-divisional Officer after hearing the parties disallowed the objection of Sri Pranakrushna Das and declared the nomination of the appellant to be valid.
8. The construction of Irda dispensary was undertaken in pursuance of the Government's policy of taking up development works in rural areas with the co-operation of the villagers. The Zamindar of Irda, Shri Mruntayanjaya Praharaj donated the plot required for the construction of the dispensary by a deed of gift 'Ext. 3/4 dated 4-11-1955. The total estimate for the construction was Rs. 12400/- out of which the Government through the Sub-divisional Officer agreed to contribute Rs. 9300/- and the balance was required to be contributed by the villagers themselves.
There is no evidence about the nature of the contribution from the villagers, that is to say, whether it was to be in the shape of money or in the form of labour or material. But the agreement (Ext. 3/1) is solely between the Government on the one hand and the appellant on the other; and it is not stated anywhere in the agreement that the appellant undertook to execute the work on behalf of, or as a representative of, the villagers.
In his evidence also he has not stated that he executed the agreement on behalf of the villagers. On the other hand, his clear case was that as no other person in the village was forthcoming to undertake this construction, he agreed to take it up as required by the Collector. It is true that the dispensary was meant for the benefit of the villagers. But in considering whether the agreement (Ext. 3/1) was signed by him in his individual capacity or as a representative of the villagers the ultimate purpose for which the building was constructed is not material.
Some emphasis was laid by Mr. Mohantyon the description of the appellant as 'theleader' in the order-sheet of the Sub-DivisionalOfficer dated 9-1-1956 (Ext 3) but this description of the appellant as 'leader' when construed along with the appellant's own testimonyonly shows that as he was a prominent man ofvillage he was chosen by the Government toundertake the work, especially when no otherperson in the village was willing to come forward.
It would not show that the appellant undertook this work as a representative of the villagers and not in his individual capacity. It is true that the appellant further stated in his evidence that he agreed to undertake the work both on behalf of the Government and on behalf of the villagers that the villagers had made their contribution for the work, and that he had kept an account of that contribution. The jural relationship between him and the villagers so far as the villagers' contribution was concerned is not in issue in this litigation and the evidence on this point is not complete.
Whatever that may be, so far as the sum of Rs. 9,000/- which the Government promised to the appellant or the appellant's undertaking to utilise the same for the construction of the dispensary is concerned, the agreement (Ext. 3/1) contains all the essential elements of a valid contract and does not show that the appellant entered into it in a representative capacity. It is true that the Sub-divisional Officer has sometimes described the appellant as an 'agent' at some, places in the order-sheet (Ext. 3) but he has given an explanation that that was the usual description adopted by the office.
For the purpose of this appeal it is unnecessary to decide whether the appellant in undertaking this work, was in the position of an independent contractor or whether he was an agent of the Government. The distinction between these two classes of persons had been explained in Lakshminarayan Ram Gopal v. Hyderabad Government, AIR 1954 SC 364 (A) and in Shivanandan v. Punjab National Bank, (S) AIR 1955 SC 404 (B). Construed either as a contract of agency or as an agreement between an independent contractor and the Government for the construction of a building on payment of money Ext. 3/1 is a valid contract fully supported by consideration. Government agreed to give money and the appellant agreed to receive the same for the purpose of construction of the building to the satisfaction of the Government. The agreement also provided for the circumstances under which the money should be given to him in instalments and further provided for refund of the sums received by him, with interest at 6 1/2 per cent per annum, if he failed to execute the work to the satisfaction of the Collector or the Gazetted Officer in charge of the project. In pursuance of the agreement he received various sums and admittedly performed his part of the contract by completing the construction of the dispensary.
9. It will be useful at this stage to examine whether it can be seriously contended that the work was undertaken by the appellant gratuitously, i. e., without any intention of making a profit. The appellant's own evidence is sufficient to repel any such theory. In examination in chief, he stated that he made no profit on this work but in cross examination he made the following admission:
'I did not enter into any stipulation that I would not make any profit out of it (meaning the agreement). Government have their schedule of rates, for estimating the cost of the work done after measurement, on the basis of their schedules. According to their estimates I was losing and never profiting.'
This answer clearly shows that the contract was like any other contract of the P. W. D. in which the possibility of making a profit is not wholly excluded. The actual work' done by the appellant was measured and the amount to be paid to him was calculated on the basis of the scheduled rates fixed by the Government. There was no provision in the agreement to the effect that if the actual expenditure incurred by the appellant in constructing the building exceeded the sum of Rs 9300/- the Government would pay him the excess, or else if the sum was less than Rs. 9300/- he should refund the balance.
Profit or loss was entirely the concern of the contractor. It may be that ultimately the appellant lost in the transaction, but this does not necessarily show that when he entered into the agreement he had no reasonable anticipation of making a profit. Mr. Mohanty, however, drew my attention to condition No. (3) of the agreement which is as follows:
'That the advance and the subsequent advance, if any, shall be utilised in the execution of the above work only.' He laid stress on the word 'only' and urged that the said word was sufficient to show that the entire sum was intended to be applied exclusively for the construction of the dispensary building and there was no idea of making any profit. I do not think that such an inference follows from the use of the word 'only' in the context. The word only emphasises that the money received by the appellant should be utilised for the construction of Irda dispensary and not for any other purpose.
It does not show that every pie of the money should be expended on the actual construction and that there was no intention of making any profit. As I have already shown, the answers elicited from the appellant in cross-examination are very clear on this question and they should also be taken into consideration in this connection. I must therefore hold that this was not a gratuitous contract and that the idea of making a profit was also in the mind of the appellant, though it may be that ultimately he suffered a loss.
10. In view of this finding it seems unnecessary to examine the question whether even if there was no idea of making a profit there could be a valid contract if one of the parties receives money for the purpose of executing a work to the satisfaction of the other party. The learned lower Court has referred to Kedar Nath v. Gurie Mahomed, ILR 14 Cal 64 (C) and Venkataratnam v. Hanumantha Rao, AIR 1935 Mad 135 (D). In my opinion, this question is purely academic.
11. The next question is whether the money was due to the appellant from the Government on the basis of Ext. 3/1 on the date of his nomination, namely 29-1-1957, The evidence of the Sub-divisional Officer is to the effect that Rs. 300/- was due. The appellant also stated in his evidence 'After the receipt of the last advance of Rs. 1000/- I was yet to get Rs. 300/-.' In his written statement also he referred to the 'balance of Rs. 300/-' that was due to him. Again, in Ext. A he clearly admitted that he was entitled to get Rs. 300/- from the Government on account of the construction of Irda dispensary. That document is dated 27-1-1957 and though the correctness of this date is challenged the document unmistakably shows that till 27-1-1957 at any rate Rs. 300/- was due to the appellant from the Government in respect of the construction of the dispensary.
12. An ingenious argument was advanced by Mr. Mohanty to the effect that no sum was due to the appellant from the Government in respect of the work undertaken by him, in pursuance of Ext. 3/1 and that the sum of Rs. 300/-due for two extra items of work done by him which were not part of the original contract. In support of this argument, he placed some reliance on Ext. 3/2 which is the completion certificate where, under item 15 'Remarks' it is noted as follows:
'The work is completed according to the specification varying from the estimate from two (?) items which has been reported for approval.' It is not clear whether the 'two Items' referred to in Ext. 3/2 were also included in the original plan and specifications on the basis of which Ext. 3/1 was drawn up, or else whether they related to two separate items unconnected with the original contract. No question was put to the Sub-divisional Officer to clarify this point nor did the appellant during his lengthy examination say that the sum of Rs. 300/- had nothing to do with the original contract and that it related to some other items of work done outside the contract. On the pleading of the parties this question did not arise at all. Hence I must overrule Mr. Mohanty's contention that Rs. 300/- was not due to the appellant under Ext. 3-1.
13. The most important question now for decision is whether the sum of Rs. 300/- was due to the appellant on the date of nomination, viz., 29-1-1957, or else whether it had been renounced by his petition Ext. A. The appellant stated that about seven or eight days before the filing of the nomination when he came to know that he had been selected by the Congress Party as its official candidate for Basta constituency, he realised the difficulty that would arise on account of the subsistence of this contract, and then made up his mind to renounce his claim for the sum of Rs. 300/-said to be due to him from Government.
He posted the petition Ext. A on 27-1-1957 (which was a Sunday) at Basta railway station in the passenger train which reached Balasore on that morning. It is difficult to believe that a fairly intelligent man like the appellant who was fully aware of the serious consequences of the subsistence of the contract on the date of nomination, would be so negligent as to send such an important document by ordinary post, especially on a Sunday. Moreover, he admittedly came to Balasore on Monday 28-1-1957 and handed over his nomination papers in person, at the office of the Sub-divisional Officer. He was fully aware that the last date of filing nominations was 29-1-1957.
One would, in these circumstances expect him not to take the risk of sending the document of renunciation by ordinary post, but to take it with him in person to Balasore on the 28th and hand it over to the officer concerned. He says that when he came to Balasore on the 28th January, he did not even bother to enquire in the office as to whether the document (Ext. A) had reached the office or not. He did not even instruct his lawyer about the posting of this petition though on 1-2-1957 an objection was filed to his nomination before the Sub-divisional Officer and his lawyer had asked for time.
Another important circumstance which renders the appellant's story highly improbable, is the absence of proper fold marks on Ext. A. According to the appellant, it was folded and put inside an ordinary postal envelope like Ext. .7. Ex. A was scrutinised by the lower Court and he found only one horizontal fold mark in the middle and he had made a special note to that effect in the document itself.
When we examined it we found that in addition to the horizontal fold mark there was another vertical fold mark also in the middle of the document. But even with these two fold marks it could not possibly be put inside a small envelope like Ext. 7 unless it is further folded.
If therefore the appellant's story about theposting of the petition (Ex. A) is true, one wouldexpect at least eight folds, but these are notfound. It was urged that, after its receipt, thepaper was kept on a flat file and consequentlythe folds might have disappeared. This argument does not appeal to me. Once a paper isfolded and subsequently kept on a flat file thefold marks will not disappear so easily exceptunder great pressure.
The very existence, of the horizontal and vertical fold marks in the middle of the document is sufficient to dispose of this argument. I must, therefore, in agreement with the lower Court hold that the appellant's story of Ext. A having been put in an envelope like Ext. 7 and posted on 27-1-1957 cannot be believed.
14. This document Ext. A was actually seen by the Sub-divisional Officer in the afternoon of 1-2-1957. He has given an interesting narrative as to how it was kept on the file. According to him there was another petition on the Irda dispensary project file, signed by the appellant and dated 29-1-1957 in which he requested for final payment of the balance of Rs. 300/-.
The Sub-divisional Officer took that petition and the file for discussion with the District Magistrate of Balasore, Sri Mathur (P. W. 1) as he had some doubts about the disqualification of the appellant on account of the subsistence of this contract. That afternoon, at about 3-30 P. M. he kept the file in charge of a clerk named Anwaruddin and went home for lunch. A few minutes later, the file was brought to his house by another clerk named Giri and he was surprised to find that the original petition of the appellant, dated 29-1-1957 was missing from the file and another petition, namely Ext. A dated 27-1-1957 was substituted in its place.
He called upon Anwaruddin to replace the original petition but the latter evaded compliance with his orders. Immediately he brought this fact to the notice of the Additional District Magistrate Shri Bhattacharjee and also sent a lengthy report (Ext, 1/1) to the District Magistrate. Anwaruddin is said to be now under suspension pending a departmental enquiry.
15. A Deputy Magistrate of Balasore, Srimati Mahabidya Bohidar (P, W. 3) has also given evidence as to how Ext. A was placed on the file. According to her, Anwaruddin brought Ext. A while she was in the Court on 1-2-1957 in the afternoon, and asked her to initial the same and put the date as 27-1-1957 saying that he had misplaced it somewhere and could not put it up before the Sub-divisional Officer in time.
In good faith, believing Anwaruddin's statement she initialled it putting the date as 28-1-1957 as the 27th was a Sunday. Subsequently when the District Magistrate called upon her to explain how she put her initials and date on Ext. A she gave her report (Ext. 1) frankly admitting her fault and saying that she had been misled by Anwaruddin, Though it was urged, with great persistence, by Mr. Mohanty that the Sub-divisional Officer (P. W. 2) should not be believed, I see absolutely no reason to reject his testimony. Apart from his status as a responsible Government Officer unconnected with the parties, his contemporaneous report, Ext. 1/1 sent to the District Magistrate on 1-2-1957, affords strongest corroboration of his evidence in court. It cannot be seriously contended that on 1-2-1957 there could possibly be any motive for the Sub-divisional Officer to submit a false report to the District Magistrate.
16. It was urged however that the Sub-divisional Officer should not be believed because the assistant Giri who was supposed to have taken the file to the house of the Sub-divisional Officer that afternoon and the Additional District Magistrate Shri Bhattacharjee, before whom he first reported the conduct of Anwaruddin were not examined.
In my opinion these two persons are not material witnesses. The District Magistrate has been examined as P. W. 1 and he has clearly stated that he saw a petition purporting to be that of the appellant dated 29-1-1957, in the morning of 1-2-1957, in which he made a claim for the balance of Rs. 300/- due to him. On the same day the Sub-divisional Officer reported to him about the conduct of Anwaruddin and produced Ext. A. In agreement with the lower Court I would accept the testimony of the Sub-divisional Officer (P. W. 2) and the Deputy Magistrate (P. W. 3) and hold that Ext. A was surreptitiously placed on the file in the afternoon of 1-2-1957 taking advantage of the absence of the Sub-divisional Officer at his residence for lunch and that the Deputy Magistrate was persuaded to ante-date it.
I would also accept the evidence of the Sub-divisional Officer to the effect that on 29-1-1957 there was another petition filed by the appellant claiming Rs. 300/- from the Government and that it was that petition that was discussed by him with the District Magistrate of Balasore in the morning of 1-2-1957. The other circumstances which conclusively show that Ext. A could not have possibly been posted in an envelope on 27-1-1957 have already been referred to.
17. It was then urged by Mr. Mohanty that the so called petition purported to have been signed by the appellant on 20-1-1957 (which he referred to as the ghost petition) was not properly proved to have been executed by the appellant and that consequently secondary evidence of its contents will not be admissible. The Sub-divisional Officer has spoken not only about the contents of that petition but has also stated that he knows the handwriting of the appellant and that the petition was signed by him. During cross-examination the appellant's lawyer himself brought out that this officer could recognise the signature of the appellant in Ext. B and the agreement Ext. 3/1. Thus the Sub-divisional Officer's competence to prove the signature of the appellant is well established.
18. The next question is whether, when a document is proved to have been lost and its contents are sought to be proved by secondary evidence under Section 65 of the Evidence Act the execution of the document could be proved by examining a witness who, having seen the document on a previous occasion, is able to recognise the handwriting or the signature of the person by whom it purports to have been executed. Mr. Mohanty is undoubtedly right in his contention that under Section 65 of the Evidence Act secondary evidence is admissible only of the existence or the contents of a document which is lost, but that the execution of the document must be proved by primary evidence as required by Section 67 of the Evidence Act.
But according to Mr. Mohanty, 'primary evidence of the execution of the document will be limited to the evidence of persons who actually saw the executant putting his signature and will not include the evidence of a person who having, on a previous occasion seen the document, speaks about his recognising the signature of the executant therein. Section 67 of the Evidence Act merely says that if a document is alleged to be signed by a person the signature of that person must be proved. It does not say that the signature must be proved by a person who actually saw that person affixing his signature.
Section 47 of that Act describes the various methods of proving the handwriting of a person and if these two Sections are read together, the reasonable inference is that the signature of a person on a document may be proved either by examining the person in whose presence the signature was affixed, or else by examining another person who is acquainted with the handwriting of the executant of the document and is able to prove his signature by his opinion. In Haria v. Manakchand, 27 Ind Cas 866 : (AIR 1914 Nag 87) (E) and Lahani v. Bala, 77 Ind Cas 798 : (AIR 1922 Nag 227) (F) and Ponnuswami v. Kalyanasundara, AIR 1930 Mad 770 (G) this view was endorsed and it was held that where direct evidence is not available indirect evidence of proof of signature on a document may be given.
Mr. Mohanty, however, contended that if the document in question is before the Court the opinion of a person who is acquainted with the handwriting of the executant may be proof of execution of that document, but where the document is not before the Court and is said to have been lost and secondary evidence of its contents is sought to be given under Section 65, such indirect evidence of proof of the signature would not be admissible.
He could not, however, cite any authority in support of his view. If this view be taken as correct, then those documents which are required by law to be attested, are lost, and there is no eye-witness to the actual affixing of signature by the executant, can never be proved; and secondary evidence of their contents will not be available under Section 65 of the Evidence Act. Thus, a class of documents will be wholly excluded from the Evidence Act.
19. In Phipson on Evidence, 9th Edition at page 544 occurs the following passage:
'The rule requiring production of the attesting witnesses provided their names are known holds, although the document is lost or destroyed ..... where both the document is lost and the attesting witness is dead, proof of handwriting by someone who remembers having seen the document, although admissible is not indispensable'.
Again at page 570 it is pointed out:
'The party tendering secondary evidence must prove the existence and execution of the document directly if possible, or presumptively where not'.
Again, in Taylor on Evidence, 11th Edition. Vol. I at page 326 it is pointed out:
'In all cases before such evidence (meaning secondary evidence) will be admissible, it must be shown that the original instrument was duly executed and was otherwise genuine. If the instrument were of such a nature as to require attestation the attesting witness must, if known, be called, or in the event of his death his handwriting must be proved precisely in the same manner as if the deed itself had been produced, though, if it cannot be discovered who the attesting witness was this strictness of proof will, from necessity, be waived'.
The above extracts doubtless deal with documents which are required by law to be attested and in the Evidence Act these are dealt with in Sections 68 to 71. Section 67 deals with documents which are not required by law to be attested. But the principle laid down in the aforesaid authorities is to the effect that if an attesting witness is dead and the document is lost, evidence of handwriting must be given by a competent person who had seen the document on a previous occasion. This principle will apply with full force in the case of an unattested document also where there is no direct evidence of execution.
20. In my opinion, therefore, the evidence of the Sub-divisional Officer (P. W. 2) regarding the petition of the appellant dated 29-1-1957 is
(i) secondary evidence of its existence and contents as deposed to by the Sub-divisional Officer from his memory;
(ii) primary evidence of its execution by the appellant inasmuch as he is competent to prove his signature.
His contemporaneous report to the District Magistrate (Ext. 1/1) shows that his memory may be relied upon.
21. I would therefore agree with the learned lower Court that the appellant applied to the Sub-divisional Officer in writing on 29-1-1957 for payment of the balance of Rs. 300/- due to him in connection with Irda dispensary project; that subsequently, when it was realised that the said document may disqualify him from standing for election to the State Assembly it was replaced by Ext. A in the afternoon of 1-2-1957 by a palpable trick. The story that Ext. A was posted on 27-1-1957 cannot be accepted. It must accordingly be held that on the date of nomination (29-1-1957) a sum of Rs. 300/- was due to the appellant under the agreement Ext. 3/1.
22. An attempt was made to discredit the evidence of the Sub-divisional Officer regarding the incidents of 1-2-1957 in the following manner. It was argued that if those incidents were really true, he would not have accepted the nomination of the appellant as valid when he passed his orders on the next day -- vide Ext. 4/-1. I see, however, no point in this argument. Even if the facts as stated by the Sub-divisional Officer regarding the existence of the petition of appellant dated 29-1-1957 during the forenoon of 1-2-1957, be taken as correct, it is yet open to the Sub-divisional Officer to hold, on a construction of Section 7(d) of the Act that the petitioner has not incurred the disqualification described in that clause.
This is purely a question of law involving the construction of that clause; and the Sub-divisional Officer may have construed it in favour of the appellant notwithstanding the facts found by him on the previous date. Hence, unless it can be further established that between the 1st and 2nd February 1957 some new facts came to light and it was on the basis of those new facts that the Sub-divisional Officer allowed the nomination of the appellant on 2-2-1957, the mere fact that the appellant's nomination was accepted as valid would not discredit the testimony of the Sub-divisional Officer with regard to the incidents that took place on 1-2-1957. Nothing has been brought out either during his cross-examination or in the evidence of the appellant's own witness to show that any such new facts came to light.
23. During the hearing of the appeal, Mr. Mohanty filed a petition before this Court for leading additional evidence in respect of two documents: (1) the actual order dated 2-2-1957 passed by the Sub-divisional Officer as Returning Officer holding the nomination of the appellant to be valid; and (2) information application No. 4 dated 31-1-1957 of one. Shri Jagannath Shaw and the reply of the Sub-divisional Officer to that application. We are not satisfied that for the ends of justice those documents should be admitted as additional evidence at this stage. The explanation given for the omission on the part of the appellant to prove this document in the lower Court is not at all satisfactory.
We however called for the order of the Sub-divisional Officer dated 2-2-1957, and after scrutinising the same we are satisfied that it is not necessary for the ends of justice to admit that in evidence now. It merely contains the opinion of the Sub-divisional Officer, as Returning Officer, and the reasons given by him as to why he did not consider the appellant to be disqualified under Section 7(d) of the Act. His opinion is quite irrelevant lor the present purpose,
24. On the facts as found above the question for consideration is whether the appellant has incurred disqualification under Section 7(d) of the Act. That clause (omitting immaterial portions) says that if a candidate has 'any share or interest in a contract for the execution of any works undertaken by the Government' he shall be disqualified from being chosen as a member of the Legislative Assembly, Mr. Mohanty urged: (1) the agreement between the appellant and the Government was not a legal contract; (2) even if it be held to be a contract, it was a gratuitous contract and the appellant had no 'interest' therein; (3) even if it be held that he had an interest, that interest ceased long before the date of his nomination, and consequently there was no subsisting interest on that date; and (4) in any view of the case, the construction of Irda dispensary was not a 'work undertaken by the Government' so as to be within the scope of that clause.
25. Though Mr, Mohanty has made a gallant effort to fight at every step, I am not 'satisfied that his arguments can prevail on the facts as found above. It has already been shown that the agreement was entered into by the appellant on his own behalf; that the profit making motive was not wholly absent, that the work was undertaken on land donated to Government, and that the appellant agreed to execute it for the Government. The mere fact that a portion of the expenditure was to be borne by contributions from the public would not in any way affect the essential position that so far as Government money was concerned the appellant entered into a valid contract to spend it for the construction work, according to the plan and specifications approved by the Collector, on payment to him of the sum promised after taking measurement of the work done.
In fact there is nothing to distinguish this contract from a building contract between the Government and an ordinary contractor of the P. W. D. It was further found that a sum of Rs. 300/- was due to the appellant under the original contract (Ext. 3/1) and the argument that the sum represented money due to him in respect of two items of work not included in the original contract, has been shown to be untenable. Even if the appellant had incurred loss in executing the work it would not show that he had no 'interest in the contract' within the meaning of Section 7(d) of the Act. In England v. Inglis (1920) 2 KB 636 (H) it was pointed out, while construing a similar provision in Section 12(1) of the Municipal Corporations Act of 1882 that
'an interest in a contract must be a pecuniary or at least a material interest but it need not be pecuniary advantage.'
In that case also an argument was raised to the effect that the contracting parties suffered a loss, but it was held that he had an interest in the contract within the meaning of the statute.
The same principle will apply in the present case also.
26. It was further contended that so far as the appellant was concerned he had completely discharged his obligation under the contract by executing the work, and if the other party, namely the Sub-divisional Officer, delayed in making final payment to him it should not be held that the appellant had any subsisting interest in the contract. This argument is similar to that put forward in the well-known Supreme Court decision, reported in Chathurbhuj Vithal Das v. Moreshwar Parashram, AIR 1954 SG 236 (I). There also the contracting party who had agreed to supply goods to Government urged that his part of the agreement was discharged and that consequently he had no subsisting interest in the contract. Their Lordships, however, rejected this contention in the following terms:
'The question, then, is: Does the contract for supply of goods terminate when the goods are supplied, or does it continue in being till payment is made and the contract is fully discharged by performance on both sides. We are of opinion that it continues in being till it is fully discharged by performance on both sides'.
These observations will apply with full force in respect of a contract for the construction of a building also. The agreement, Ext. 3/1 clearly shows that until final payment is made to the contractor after the work has been certified to be executed according to the approved plans and specifications the contract subsists. The appellant had not merely contracted to construct the dispensary but had also agreed to construct the building to the satisfaction of the Sub-divisional Officer.
Till that satisfaction is obtained after proper check by the gazetted officer in charge of the project, the appellant cannot be said to have fulfilled his part of the contract. In fact, he agreed to refund the money advanced to him with interest at 6 1/2 per cent per annum, if the work was found to be unsatisfactory. Hence, until the completion certificate is obtained from the competent authority and final payment is made to him or at least ordered to be made to him, the contract subsists. In fact, the order of the Sub-divisional Officer dated 6-8-1956 (Ext. 3) makes this position very clear. The question of the appellant being paid for the balance on the principle of quantum meruit does not arise, in view of my finding that the portion of the work for which the sum of Rs. 300/- was due to him, was also part of the original work undertaken by him and was included in Ext. 3/1.
27. I would therefore in agreement with the lower Court hold that the appellant had a subsisting interest in the contract on the date of his nomination, viz.. 29-1-1957 and was therefore disqualified from being chosen for the State Legislative Assembly.
28. In view of the above finding it is perhaps unnecessary to discuss the other points argued at some length regarding the cross-objection raised by the respondent. I may however notice some of them.
29. It was urged by Mr. Das for the respondent that the accounts (Ext. 6) submitted by the appellant deal with payment of 'rewards' to workers and propagandists (vide Exts. 6/1, 6/2, 6/3, and 6/4) and that the payment of such rewards to workers would amount to 'bribery' within the meaning of Section 123(1) of the Act. The appellant admitted that he engaged 50 to 60 propagandists who went about in the constituency asking the people to vote for the Congress nominee (meaning of course himself); and that he paid them some money towards their expenses. His attention was specifically drawn to the use of the word 'reward' in the account book (Ext. 6), but he explained it by saying that the word was wrongly used toy his son who wrote the accounts and that by 'reward' he only meant food charged (Khoraki).
He admitted that there were some other entries in the account book showing the payment of food charges to his workers. In support of this explanation he examined one of the workers, Mandhara Dhar Patro (D. W. 1) who admitted that he received Rs. 15/- and gave a voucher (Ext. 5) to the appellant for doing 'Frachar' work for him in the constituency, but he stated that for such propaganda work he had purchased paper, gum, rope and also engaged muliahs and travelled to Balasore to get printed pamphlets and that the sum actually spent for these purposes was much more than the money that he received from the appellant. His evidence shows that so far as the expenditure evidenced by Ext. 5 was concerned, it cannot be said to be a 'reward' paid to him for the work done.
But as regards other items in the documents mentioned above, there is no evidence -- apart from the entries in the account book -- to show that the sums were paid by way of reward and not to meet the incidental expenses of canvassing actually incurred by the workers. Section 123(1) of the Act includes within the definition of 'bribery' 'payment of any gratification to any person whomsoever, with the object directly or indirectly of inducing the electors to vote'. But the explanation to that Section says that 'gratification' will include rewards, but does not include 'payment of any expenses bona fide incurred at or for the purpose of any election and duly entered in the account of election expenses referred to in Section 78'.
Mr. Das relying on the corresponding provisions in the English law as mentioned in paragraph 399 at page 229 of Halsbury's Laws o England, 3rd Edition, Vol 14, urged that tfiough expenses incidental to a canvass are permissible, the employment of a paid canvasser would amount to a corrupt practice. For the purpose of this appeal it is unnecessary to decide whether if a person is engaged as a canvasser for a candidate at an election and he is paid for working as a canvasser, such payment would amount to 'bribery' under the Indian Election law on the ground that it is made with the object of indirectly inducing the electors to vote, canvassing being only a medium through which a candidate induces the voters to vote for him.
Under the English law, the employment of a paid canvasser is expressly prohibited by a special section (vide Section 96 of the Representation of the People Act 1949) whereas under the Indian Law, such prohibition is required to be implied from the language of Section 123(1) of the Act. But whatever that may be, in the absence of direct evidence either of persons who received various sums of money from the appellant or of persons who had personal knowledge that such payments amounted to rewards, I am not prepared to hold from the mere entries in the account book that the sums were paid by way of rewards to the workers of the appellant.
The sums were very small and would ordinarily just suffice to meet the boarding, travelling and other incidental expenses of the workers. The appellant's explanation that the word ''reward' was somewhat incorrectly used by his son who wrote out the accounts and that he signed the accounts without carefully scrutinising the same may possibly be true. If the sums paid are large and disproportionate to the expenses incidental to election, the legal question will have to be discussed at great length. On the facts of this case this question is academic and I would leave it open.
30. Mr. Das next urged that the accounts were nor properly kept as required by Section 77 of the Act read with Rule 131 of the Conduct of Election and Election Petition Rules, and that consequently the appellant is guilty of corrupt practice under Sub-section (6) of Section 123. According to Mr. Das, the accounts should separately show the expenditure daily incurred by other persons who were authorised by him to work on his behalf. But Ext. 6 only shows the expenses incurred by the appellant. Whenever any of his workers incurred expenditure on his behalf he did not incorporate that expenditure, from day to day, in the accounts until they subsequently came to him and gave a consolidated statement and, on the basis of that statement he paid them whatever amount was due.
It was urged that such entries would not amount to strict compliance with Section 77 of the Act, read with the aforesaid Rule 131. There is, however, no evidence to show that any item of expenditure incurred by the appellant's workers was not eventually brought into the accounts. It may be that the workers incurred expenditure oh several days and subsequently, when they submitted their vouchers to the appellant in respect of the same, he made lump sum payments of Rs. 10, 15, or 20, as the case may be, to each of the workers and the date on which such lump sum payments were made was alone noted in the accounts.
Doubtless if any item of expenditure was omitted altogether in the accounts that would be a serious matter and may amount to a corrupt practice inasmuch as there is a likelihood of the total expenditure for the election exceeding the amount prescribed. But so long as every item of expenditure is accounted for, I do not think that the mere omission to mention the dates on which each item of expenditure was actually incurred on behalf of the candidate by his workers, is such a serious irregularity as to amount to a 'corrupt practice.'
31. Mr. Das then relied on an admission by the appellant in his cross-examination to the effect that some of his workers used to dine at the Nirbachan office and that he did not maintain accounts of the expenses incurred on such feeding charges. It was not further elicited from him in cross-examination as to whether the Nirbachan office was itself maintained by the appellant or by the Congress party. Unless it can be further shown that the said office was maintained by the appellant and that he under-took to feed the workers whenever they dined at that office, the omission to note such feeding expenses in the accounts would not amount to contravention of Section 77 of the Act, read with Rule 131 of the Rules. As already pointed out, the respondent has not brought out any additional materials to show that any item of expenditure actually incurred by the appellant was omitted in the accounts. Accordingly I do not think that the, appellant can be held guilty of corrupt practice by not maintaining accounts in accordance with Section 77 of the Act.
32. For the aforesaid reasons, the order of the Election Tribunal is upheld and the appeal is dismissed with costs. Hearing fee Rs. 250/-(Rupees two hundred and fifty only).
33. The cross objection of the respondent is also dismissed but without costs.
Balakrishnarao, J.
34. I agree with the order proposed by my Lord that the appeal should be dismissed with costs.
35. From the facts disclosed in this case, I cannot refrain from commenting upon the conduct of the Sub-Divisional Officer, Sadar, Balasore and Shrimati Mahabidya Bohidar, Deputy Collector, Balasore who were examined in the case as P. Ws 2 and 3.
36. P. W. 2 Shri Radhashyam Das, the Sub-Divisional Officer was also the Returning Officer for the Basta Constituency. According to his evidence, he was holding the scrutiny of the nomination papers filed by the parties arid hearing the objections on 1-2-1957 and the record relating to the contract entered into by the appellant was with him at the time he was hearing the objections. He stated that during the time he was engaged in hearing the objections, one Anwaruddin, an assistant came to him and saying that a copy application was filed for some paper in that file asked for the file. The Sub-Divisional Officer, though he was examining the very question relating to the validity or otherwise of the nomination of the appellant relating to the contract at that very moment, handed over the file to Anwaruddin and went away to his house to take lunch.
It is his evidence that when he was taking lunch at his house, one Giri came with the file when he found that a petition dated 29-1-1957 in which the appellant claimed for the balance of the amount due under the contract was not there and that in its place a petition dated 27-1-1957 in which the appellant gave up his claim to the amount due under the contract was substituted. He immediately, according to his evidence, made a report to the Additional District Magistrate as also to the District Magistrate. He gave evidence of the actual existence of the petition dated 29th January and that it was signed by the appellant.
Curiously enough though he was, on 1st February, a day prior to the acceptance of the nomination of the appellant by him, aware of the fact that a petition dated 29th January showing the subsistence of a contract was removed clandestinely and was substituted by a petition dated 27th January showing the non-existence of a contract between the appellant and the Sub-Divisional Officer relating to the construction of Irda Dispensary, yet in the order which he pronounced this matter was not at all referred to. Again though the act of a Returning Officer in accepting or rejecting a nomination paper is a judicial act, yet he gave evidence in Court that on the 1st February he went to the District Magistrate to consult him on this point.
In my opinion, as a responsible officer incharge of a sub-division of a district, he ought not to have gone to the District Magistrate to consult him about the matter on which he has to pronounce a judicial order under a statutory authority holding as he does such a responsible: position as that of a Sub-Divisional Officer and Magistrate and he ought not to have handed over the record to an assistant when he was holding an enquiry into the matter and hearing the objections relating to the subject under enquiry. In my opinion, his conduct in these two matters is highly reprehensible.
37. Shrimati Mahabidya Bohidar, who was a Deputy Collector, put her signature and antedated a document at the mere representation of an assistant in the office that it was received on the 27th January and that he failed to put it up before the concerned officer and therefore it should be signed as if it was received on 27th. She admitted in her evidence that she signed and put the date 28th as 27th was a Sunday though the paper was actually placed before her on 1st February. The explanation offered by her to the District Magistrate is indeed strange. Such a responsible officer as a Deputy Collector should not ante-date a document at the request of an assistant in the office. She also, in my opinion, acted 'in a way unbecoming of the responsible position of a Deputy Collector and her conduct is highly reprehensible.
38. I must also remark that it is not necessary for the respondent in this case to file a memorandum of cross-objections. The provisions of the Code of Civil Procedure apply to, these appeals. A memorandum of cross-objections is filed only when the respondent claims some relief disallowed by the trial court or tribunal. He can support the order of the tribunal on any ground and the grounds to be urged need not be made the subject matter of the memorandum of cross-objections.