Chattisgarh High Court
Munna Lal Toppo vs Chhattisgarh Election Commission on 17 April, 2026
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Page 1 of 42
(EP No.1/2024)
Digitally 2026:CGHC:17589
signed by
SISTA AFR
SISTA SOMAYAJULU
SOMAYAJULU Date:
2026.04.17
17:20:28 HIGH COURT OF CHHATTISGARH AT BILASPUR
+0530
Election Petition No.1 of 2024
Order reserved on: 17/03/2026
Order delivered on: 17/04/2026
Order (Full) uploaded on: 17/04/2026
Munna Lal Toppo, S/o Late Heera Sai, aged about 44 years, R/o
Village Bishunpur, P.O. Poksarai, P.S. Sitapur, Tehsil Batauli, District
Surguja (C.G.)
... Petitioner
versus
1. Chhattisgarh Election Commission through the Chief Electoral Officer
of Chhattisgarh, Shastri Chowk, Old Mantralaya Premises, Raipur,
District Raipur (C.G.)
2. District Election Officer cum Collector, Surguja, P.O. Ambikapur,
District Surguja (C.G.)
3. Ravi Rahi, Returning Officer, Legislative Assembly Circle-11, Sitapur
Constituency, Sitapur, District Surguja (C.G.)
4. Poorv Sainik Ramkumar Toppo, S/o Ganesh Ram, aged about 31
years, R/o Gotchhal, Post Jamkani, Tehsil Mainpath, District Surguja
(C.G.)
Bharatiya Janata Party
... Respondents
For Petitioner : Dr. Jitendra Kishor Mehta and Mr. Anand Kumar
Kujur, Advocates.
For Respondents No.1 to 3 : Mr. Rakesh Kumar Jha, Advocate.
For Respondent No.4 : Mr. Sharad Mishra, Advocate.
Page 2 of 42
(EP No.1/2024)
Single Bench: –
Hon’ble Shri Justice Sanjay K. Agrawal
C.A.V. Order
For sake of exposition, this Order is divided in following parts:-
S.No. Particulars Page Nos. 1. Challenge in the Election Petition 2 2. Election Petition and Ground for declaring Election Void 3 3. Return by the Returned Candidate 4 4. Issues and Findings on the Issues 5 5. Submissions on behalf of the Petitioner 7 6. Submissions on behalf of the Returned Candidate 9 7. Submission on behalf of the Election Commission 12 8. Grounds for declaring Election to be Void 12 9. Scrutiny of Nomination Paper 14 10. Relevant provision regarding Disqualification to Contest the 16 Election 11. Nature of Election Petition/Proceeding 19 12. Burden of Proof 20 13. Evidentiary Value of Admission 21 14. Discussion and Analysis 23 15. Relief and Cost 41 1. Challenge in the Election Petition
The Election Petitioner herein has called in question the election of
Respondent No.4/Returned Candidate from Legislative Assembly
Constituency No.11, Sitapur (ST), District Surguja under Sections 80A
& 81 read with Section 100(1)(c) of the Representation of the People
Act, 1951 (for short, ‘the Act of 1951’) that his nomination papers
Page 3 of 42(EP No.1/2024)
have been improperly rejected by the Returning Officer by its order
dated 31.10.2023 vide Ex.-P/19.
2. Election Petition and Ground for declaring Election Void:-
2.1) The election petitioner herein has filed this election petition
stating inter alia that he intended to contest the Chhattisgarh
Legislative Assembly Election, 2023. In order to contest election from
Constituency No.11, Sitapur (ST), District Surguja, he submitted 3 sets
of nomination papers on 27.10.2023 and 30.10.2023 before the
Returning Officer, Legislative Constituency No.11, Sitapur (ST),
District Surguja, vide Exs.-P/11, P/12 & P/13. On the date of scrutiny
of nomination papers i.e. on 31.10.2023, one independent candidate
namely, Ram Kumar Kindo filed an objection before the Returning
Officer stating that the election petitioner is a Government contractor,
as he is registered with the Public Health Engineering Department, and
at present he holds the office of profit and, therefore, under Section 9A
of the Act of 1951, the petitioner is disqualified to contest the election.
2.2) The election petitioner herein submitted his reply to the objection
raised by candidate Ram Kumar Kindo on 31.10.2023, vide Ex.-P/16.
Thereafter on the same day i.e. 31.10.2023, the Returning Officer,
Legislative Assembly Constituency No.11, Sitapur (ST) sought a
factual report vide Ex.-P/17 from the Executive Engineer, Public
Health Engineering Department on two points namely, (1) whether
election petitioner Munna Lal Toppo was having contract with
Page 4 of 42
(EP No.1/2024)
appropriate Government in relation to his own trade or business or for
execution of any work undertaken by the said Government, and (2) if
yes, then whether such contract still subsists? The Executive Engineer,
Public Health Engineering Department submitted his report on the
same day i.e. 31.10.2023 vide Ex.-P/18 answering both the queries in
affirmative along with supporting documents. Thereafter, on
31.10.2023, the Returning Officer, Legislative Assembly Constituency
No.11 Sitapur passed the impugned order vide Ex.-P/19 rejecting his
nomination papers holding that the election petitioner is disqualified
for contesting the election and being elected as member of Legislative
Assembly of Chhattisgarh under Section 9A of the Act of 1951.
2.3) Thereafter, respondent No.4 was declared elected from the
Legislative Assembly Constituency No.11 Sitapur (ST), District
Surguja on 5.12.2023. Feeling aggrieved, the election petitioner has
filed the present Election Petition questioning the improper rejection of
nomination papers on the grounds enumerated under Section 9A of the
Act of 1951 that he was qualified to contest the election.
3. Return by the Returned Candidate
3.1) Respondent No.4/Returned Candidate, has filed return stating that
the Returning Officer was absolutely justified in rejecting the
nomination papers of the election petitioner, as the District Water &
Sanitation Mission (DWSM) was constituted by order of the Collector
under the Government scheme and powers for implementation of Jal
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(EP No.1/2024)
Jeevan Mission were delegated by the PHE Department as per the
recommendation of the Cabinet and as such, DWSM would fall within
the definition of ‘appropriate Government’ under Sections 7(a) and 9A
of the Act of 1951.
3.2) It was further pleaded that the Returning Officer was absolutely
justified in rejecting the nomination papers of the election petitioner, as
the election petitioner was having contract with the appropriate
Government, which is apparent from the report submitted by the
Executive Engineer, Public Health Engineering Department.
Therefore, in view of Sections 7(a) and 9A of the Act of 1951, the
Election Petition deserves to be dismissed.
4. Issues and Findings on the Issues:-
On the basis of pleadings made by the parties, following issues were
framed and corresponding answers/findings are noted against each one
of them :-
S.No. Issues Findings
1. Whether the returning officer is justified in
rejecting the nomination paper of the petitioner
by order dated 31.10.2023 holding that the
petitioner is disqualified to contest the election of “Yes”
Sitapur Assembly Constituency No.11, District
Surguja, in view of the provisions contained in
Section 9A of the Act of 1951?
2. Whether the District Water and Sanitation
Mission and the Village Water and Sanitation
Committee would fall within the definition of
“Not proved”
“appropriate Government” under Section 7(a)
read with Section 9A of the Act of 1951?
3. Relief and cost(s)? “As per para 49”
Page 6 of 42
(EP No.1/2024)
5. In order to prove his case that his nomination papers were improperly
rejected by the Returning Officer, the election petitioner has examined
himself as PW-1 and he has proved the documents (Ex.-P/1 to P/25);
(PW-2) Ravi Rahi – Returning Officer, who has proved the contents of
Exs.-P/15, P/16, P/17 & P/19; (PW-3) Shankar Prasad Mandavi,
Executive Engineer, PHE Department, Bilaspur, who has proved his
reply/enquiry report (Ex.-P/18); (PW-4) Ram Kumar Kindo, who has
proved the complaint (Ex.-P/15) and (PW-5) Ram Kumar Toppo. An
affidavit under Order 18 Rule 4 of the CPC has been filed by the
election petitioner as also by Ram Kumar Kindo (complainant).
Similarly, respondent No.4 has examined himself.
6. On 2.2.2026, learned counsel for the election petitioner submitted that
his nomination papers were rejected on 31.10.2023, whereas Dr.
Sarweshwar Narendra Bhure (proposed Government Witness) was
posted as MD, Jal Jivan Mission from 11 th September, 2024 to 21st
April, 2025 and, therefore, he does not want to examine him as the
petitioner’s witness. Considering the submission made by learned
counsel for the election petitioner, Dr. Sarweshwar Narendra Bhure
(proposed Government Witness) present before the Court through
Video Conferencing, was discharged without his examination
Page 7 of 42(EP No.1/2024)
7. Submissions on behalf of the petitioner
Dr. Jitendra Kishor Mehta, learned counsel appearing on behalf of the
election petitioner, would submit as under:-
(i) The Returning Officer was absolutely unjustified in rejecting the
nomination papers on the ground enumerated under Section 9A of the
Act of 1951, as the District Water and Sanitation Mission and Village
Water and Sanitation Committee would not fall within the definition of
appropriate Government under Section 7(a) read with Section 9A of
the Act of 1951.
(ii) Section 9A of the Act of 1951 requires strict proof of a subsisting
contract with the appropriate Government for execution of works
undertaken by that Government and all the ingredients must co-exist
on the date of scrutiny. Appropriate Government has been defined
under Section 7(a) of the Act of 1951 which means the State
Government in relation to Assembly elections.
(iii) All contracts made in the exercise of the executive power of the
State shall be expressed to be made by the Governor. Article 299 of
the Constitution of India mandates that a valid Government contract
must be expressed in the name of Governor and the same be executed
on behalf of the Governor. Non-compliance of Article 299 is fatal to
claim that the contract is with the Government/appropriate
Government. In the instant case, the agreement with the District Water
Page 8 of 42(EP No.1/2024)
and Sanitation Mission and Village Water and Sanitation Committee is
not expressed in the name of Governor of Chhattisgarh, rather it is
executed by the Executive Engineer, PHE Department for District
Water and Sanitation Mission and Village Water and Sanitation
Committee. A tripartite agreement has been entered into between the
Executive Engineer, PHE Department; the petitioner as contractor and
Ex-officio Secretary of the District Water and Sanitation Mission and
Sarpanch for Village Water and Sanitation Committee. As such, there
is no contract/agreement executed with the Executive Engineer, PHE
Department and other bodies and, therefore, the nomination papers of
the petitioner have been wrongly rejected.
(iv) Learned counsel for the election petitioner would place reliance on
the judgments of the Supreme Court in the matters of Shrikant v.
Vasantrao & Ors1, Mulamchand v. State of Madhya Pradesh2, K.P.
Chowdhry v. State of Madhya Pradesh and others3, Bhikraj
Jaipuria v. Union of India4, Konappa Rudrappa Nadgouda v.
Vishwanath Reddy and Another5. Learned counsel for the election
petitioner would further place reliance on the judgment of the Supreme
Court in the matter of Shibu Soren v. Dayanand Sahay and Others6
to submit that disqualification of a person must be proved strictly in
1 (2006) 2 SCC 682
2 1968 SCC OnLine SC 21 : AIR 1968 SC 1218
3 AIR 1967 SC 203
4 AIR 1962 SC 113
5 1968 SCC OnLine SC 407
6 (2001) 7 SCC 425
Page 9 of 42
(EP No.1/2024)
conformity with the object of the Act. Reliance is also placed in the
matter of Jagan Nath v. Jaswant Singh and Others 7. Relying on the
decision of the Supreme Court in the matter of Kanta Kathuria v.
Manak Chand Surana8, it was argued that mere admission of the
Election Petitioner in the nomination paper would not create any
disqualification. Lastly, learned counsel for the election petitioner
would rely upon the decision of the Supreme Court in the matter of
Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his
LRs9. As such, it was prayed that the election petition be allowed and
the election of Respondent No.4 be set aside.
8. Submissions on behalf of respondent No.4 – Returned Candidate:-
Mr. Sharad Mishra, learned counsel appearing on behalf of the
Returned Candidate/respondent No.4 herein, would oppose the
submissions made on behalf of the election petitioner and would
submit as under:-
(i) The burden is on the election petitioner to prove his averments/
pleadings before the Election Tribunal (this Court), which in the
instant case, has not been discharged by the election petitioner.
(ii) Since the proceedings before the Election Tribunal (this Court) are
original proceedings, it was open to the election petitioner to place
additional material on record during election trial to show that he was
7 (1954) 1 SCC 57
8 (1969) 3 SCC 268
9 (1990) 1 SCC 193
Page 10 of 42(EP No.1/2024)
not disqualified from contesting the election and his nomination papers
were improperly rejected, but the election petitioner has not filed any
document except the documents which were filed before the Returning
Officer to demonstrate the said fact. Therefore, in order to prove his
candidature/qualification to contest the election, no additional
document/material has been brought before this Court and as such, the
election petitioner has failed to discharge his duty cast upon him.
Learned counsel for respondent No.4 would place reliance on the
judgments of the Supreme Court in the matters of Vashist Narain
Sharma v. Dev Chandra & Others10, Harikrishna Lal v. Babu Lal
Marandi11 and Birad Mal Singhvi v. Anand Purohit12. Reliance is
further placed in the matters of NT Veluswami Thevar v. G. Raja
Nainar & Others13 and Mohd. Yasin Shah v. Ali Akbar Khan 14
(para-38).
(iii) The proceeding of scrutiny of nomination paper(s) as provided
under Section 36 of the Act of 1951 is summary in nature where the
Returning Officer is obligated to scrutinize the nomination papers and
the objection received thereof by giving opportunity of hearing to the
concerned parties. During such scrutiny, the Returning Officer can
conduct a summary enquiry, if he thinks necessary in the given facts
and circumstances of the case. In the instant case, the Returning
10 (1954) 2 SCC 32
11 (2003) 8 SCC 613
12 1988 (Supp) SCC 604
13 AIR 1959 SC 422
14 (1977) 2 SCC 23
Page 11 of 42
(EP No.1/2024)
Officer has duly followed the procedure prescribed under the Act of
1951, which is evident from the fact that after receiving the complaint
(Ex.-P/15) filed by Ram Kumar Kindo, the Returning Officer
forwarded the same and called for the report from the Executive
Engineer (PW-3), pursuant to which enquiry report (Ex.-P/18) was
submitted by the Executive Engineer, PHED. Thereafter, reply was
also sought from the election petitioner and after giving due
opportunity of hearing and after conducting a summary enquiry, the
order dated 31.10.2023 (Ex.-P/19) was passed. Reliance is also placed
in the matter of Mathura Prasad v. Ajeem Khan15.
(iv) The election petitioner has categorically admitted in his
nomination papers as well as affidavit (Exs.-P/11 to P/14) that he has
subsisting contract with the appropriate Government, which he
admitted during trial as well in his cross-examination. Therefore,
admission is the best evidence and admitted facts need not be proved
unless the same is rebutted during trial, as per Sections 17, 21 and 58
of the Indian Evidence Act, 1872. Learned counsel for respondent
No.4 would place reliance on the judgment of the Supreme Court in
the matter of Bishwanath Prasad and Others v. Dwaraka Prasad
and Others16 (para-4).
(v) Lastly, it was submitted that since the election petitioner himself
admitted in his nomination papers (Exs.-P/11 to P/13) and affidavit
15 (1990) 3 SCC 659
16 (1974) 1 SCC 78
Page 12 of 42
(EP No.1/2024)
(Ex.-P/14) that he was having subsisting contracts under the Jal Jeevan
Mission, he cannot be allowed firstly to make admission before the
Returning Officer to mislead and thereafter revert back and say that the
District Water and Sanitation Mission and Village Water and Sanitation
Committee are not appropriate Government under Section 7(a) read
with Section 9A of the Act of 1951. Admission made and duly proved
by the petitioner is binding on him and, therefore, he cannot resile
from his version. As such, the Election Petition deserves to be
dismissed.
9. Submission on behalf of the Election Commission
Mr. Rakesh Kumar Jha, learned counsel appearing on behalf of the
Chhattisgarh Election Commission/respondents No.1 to 3 herein, would
support the stand taken by learned counsel for respondent No.4.
10. I have heard learned counsel for the parties and considered their rival
submissions made herein-above and also gone through the record with
utmost circumspection.
Grounds for declaring election to be void: –
11. The petitioner has taken a ground that his nomination papers have
improperly been rejected by the Returning Officer. At this stage, it
would be appropriate to notice Section 100(1)(c) of the Act of 1951
which states as under: –
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(EP No.1/2024)
“100. Grounds for declaring election to be void.–(1) Subject
to the provisions of sub-section (2) if the High Court is of
opinion–
(a) and (b) xxx xxx xxx
(c) that any nomination has been improperly rejected; or
(d) xxx xxx xxx
the High Court shall declare the election of the returned
candidate to be void.”
12. A careful perusal of Section 100(1)(c) of the Act of 1951 would show
that this Court would declare the election of the returned candidate to
be void, if the nomination paper of any candidate has been improperly
rejected.
13. Improper rejection of nomination paper by itself and without anything
more is good ground to declare election of returned candidate, void
(see Somnath Rath v. Bikram K. Arukh and others 17). Similarly, in
the matter of Surendra Nath Kosla and another v. S. Dalip Singh
and others18, the Supreme Court has made distinction between two
classes of cases namely improper acceptance and improper rejection of
nomination paper. There is presumption in case of improper rejection
of nomination paper that it has materially affected result of election.
Fact that one of several candidates for election had been kept out of
arena is by itself very material consideration. On the other hand, in
case of improper acceptance of nomination paper, proof may easily be
forthcoming to demonstrate that coming into arena of additional
17 AIR 1999 SC 3417
18 AIR 1957 SC 242
Page 14 of 42
(EP No.1/2024)
candidate has not had any effect on election of best candidate in field.
Similarly, in the matter of Nandiesha Reddy v. Kavita Mahesh19, the
Supreme Court has held that if election is challenged on ground of
improper rejection of nomination paper, petition should set out reasons
given by Returning Officer for rejection and facts necessary to show
that rejection was improper; in absence of such averments it cannot be
said election petition contains material facts to make out a cause of
action to put the election petition in trial.
Scrutiny of nomination paper: –
14. Section 36 of the Act of 1951 deals with Scrutiny of nomination. By
virtue of sub-section (2) of Section 36, the Returning Officer shall
examine the nomination papers and shall decide all objections which
may be made to any nomination and may, either on such objection or
on his own motion, after such summary inquiry, if any, as he thinks fit,
reject any nomination on any of the following grounds:–
(a) that on the date fixed for the scrutiny of nominations the
candidate either is not qualified or is disqualified for being
chosen to fill the seat under any of the following provisions that
may be applicable, namely:–
Part II of this Act, and sections 4 and 14 of the Government of
Union Territories Act, 1963 (20 of 1963); or
19 AIR 2011 SC 2639
Page 15 of 42
(EP No.1/2024)
(b) that there has been a failure to comply with any of the provisions
of section 33 or section 34; or
(c) that the signature of the candidate or the proposer on the
nomination paper is not genuine.
15. Similarly, sub-section (4) of Section 36 of the Act of 1951 provides
rejection on the ground of any defect which is not of a substantial
character.
16. Under sub-section (2) of Section 36, the Returning Officer has to
examine the nomination paper and decide all objections which may be
made thereto. This power is undoubtedly judicial in character. But in
exercising this power he is authorised to come to a decision “after such
summary enquiry, if any, as he thinks necessary”. In other words, the
function of the Returning Officer acting under Section 36 of the Act of
1951 is judicial in character but he is not to act judicially in
discharging it. (See Virindar Kumar Satyawadi v. State of
Punjab20.)
17. In the matter of N.T. Veluswami Thevar v. G. Raja Nainar and
others21, the Supreme Court has again held that the enquiry which a
Returning Officer has to make under Section 36 of the Act of 1951 is
summary in character. He may make such summary enquiry, if any, as
he thinks necessary; he can act suo motu.
20 AIR 1956 SC 153
21 AIR 1959 SC 422
Page 16 of 42
(EP No.1/2024)
18. Similarly, in the matter of Birad Mal Singhvi v. Anand Purohit22, the
Supreme Court has held that Returning Officer must satisfy himself
that candidate possesses necessary qualifications, as enquiry under
Section 36 of the Act of 1951 is summary in nature.
Relevant provision regarding Disqualification to Contest the
Election
19. This would bring me back to the disqualifying provision under which
the election petitioner has been disqualified. Section 9A of the Act of
1951, which is the disqualifying provision, states as under: –
“9A. Disqualification for Government contracts, etc.–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 supply of
goods to, or for the executions of any works, undertaken by that
Government.
Explanation.–For the purposes 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.”
20. Section 7 of the Act of 1951 is Definitions clause. Section 7(a) defines
the term “appropriate Government” and Section 7(b) defines the word
“disqualified”. Both the clauses state as under: –
“(a) “appropriate Government” means in relation to any
disqualification for being chosen as or for being a member of
either House of Parliament, the Central Government, and in
relation to any disqualification for being chosen as or for being a22 AIR 1988 SC 1796
Page 17 of 42(EP No.1/2024)
member of the Legislative Assembly or Legislative Council of a
State, the State Government;
(b) “disqualified” means 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 under the
provisions of this chapter, and on no other ground.”
21. As this Court is dealing with disqualification for being chosen as a
Member of the Legislative Assembly, the term “appropriate
Government” in Section 9A of the Act of 1951 refers to and means the
“State Government”. The term “State Government” is not defined
either in the Constitution or in the Act of 1951. Clause (a) of sub-
section (1) of Section 2 of the Act of 1951 provides that unless the
context otherwise requires, each of the expressions defined in Section
2 or sub-section (1) of Section 27 of the Representation of the People
Act, 1950, but not defined in the Act of 1951, shall have the same
meaning as in the Act. Section 2(60) of the General Clauses Act,
1897, provides that the term “State Government”, as respects anything
done or to be done, shall mean in a State, the Governor.
22. The Supreme Court in Shrikant (supra) considered the meaning of
“State Government” with reference to Section 9A of the Act of 1951
and held that the term “State Government” in Section 9A (read with
Section 7 of the Act) should, therefore, be understood in its ordinary
and normal sense, and not with reference to the extended meaning
under Article 12 of the Constitution.
Page 18 of 42
(EP No.1/2024)
23. In the matter of Ranjeet Singh v. Harmohinder Singh Pradhan23, the
Supreme Court has held that Section 9A is a statutory provision which
imposes a disqualification on a citizen. Their Lordships further held
that it would, therefore, be unreasonable to take a general or broad
view, ignoring the essentials of the section and the intention of the
legislature. Purposive interpretation is necessary.
24. Further, in the matter of Kartar Singh Bhadana v. Hari Singh
Nalwa24, the Supreme court has clearly held that the provisions of
Section 9A disqualify a citizen from contesting an election; a citizen
may, therefore, be disqualified only if the facts of his case squarely fall
within the conditions prescribed by Section 9A. Their Lordships
considering Ranjeet Singh (supra) and Kartar Singh Bhadana
(supra) held in Shrikant (supra) that in order to invoke Section 9A a
candidate has to have a subsisting contract with the appropriate
Government and such contract must be entered into by him in the
course of his trade or business, the contract should relate to the works
undertaken by the appropriate Government, and it should be for
execution of such works. It has been observed in Shrikant (supra) as
under: –
“20. The object and intent of Section 9-A of the Act is to
maintain the purity of the legislature and to avoid conflicts
between duty and interest of Members of the Legislative
Assembly and the Legislative Council. The said object is sought
to be achieved by ensuring that a person who has entered into a23 (1999) 4 SCC 517
24 (2001) 4 SCC 661
Page 19 of 42(EP No.1/2024)
contract with the State Government and therefore liable to
perform certain obligations towards the State Government, is not
elected as a Member of the Legislative Assembly or Legislative
Council, lest he should use his influence as an elected member
of the legislature to dilute the obligations or to seek and secure
undue advantages and benefits in respect of the subsisting
contracts. It seeks to ensure that personal interests will not
override his duties and obligations as a member of the legislature
or Legislative Council. For the purpose of Section 9-A, what is
relevant is whether the candidate has a subsisting contract with
the appropriate Government (in this case, the State Government)
either for supply of goods to the State Government or for
execution of any work undertaken by the State Government.
The six requirements for application of disqualification under
Section 9-A of the Act where a candidate holds a contract for
execution of works undertaken by the appropriate Government
have been listed by this Court in Kartar Singh Bhadana v. Hari
Singh Nalwa [(2001) 4 SCC 661] as follows: (SCC p. 665, para
8)
(i) There should be a contract entered into by the candidate;
(ii) such contract should be entered into by him in the course
of his trade or business;
(iii) the contract should be entered into with the appropriate
Government;
(iv) the contract should subsist;
(v) the contract should relate to the works undertaken by the
appropriate Government; and
(vi) the contract should be for execution of such works.”
Nature of Election Petition/Proceeding: –
25. It is well settled that the election petition before this Court is an
original proceeding and the proceedings in an election petition are not
in the nature of appeal against the order of the Returning Officer. It is
open to an election petitioner to place material before this Court to
Page 20 of 42
(EP No.1/2024)
show that the election petitioner was qualified to contest the election.
It has been held by their Lordships of the Supreme Court in Birad Mal
Singhvi (supra) as under: –
“10. … In the absence of any material before the returning
officer, the returning officer was not wrong in taking the entries
in the electoral roll into consideration and acting on them. But
his decision is not final. In an election petition it is open to an
election petitioner to place cogent evidence before the High
Court to show that the candidate whose nomination paper was
rejected had in fact attained the age of 25 years on the relevant
date. It is open to the High Court to take a final decision in the
matter notwithstanding the order of the returning officer
rejecting the nomination paper. If on the basis of the material
placed before the High Court it is proved that the candidate
whose nomination paper had been rejected was qualified to
contest the election it is open to the High Court to set aside the
election. Enquiry during scrutiny is summary in nature as there
is no scope for any elaborate enquiry at that stage. Therefore it
is open to a party to place fresh or additional material before the
High Court to show that the returning officer’s order rejecting the
nomination paper was improper. It should be borne in mind that
the proceedings in an election petition are not in the nature of
appeal against the order of the returning officer. It is an original
proceeding. In the instant case it was open to the respondent
election petitioner to place material before the High Court to
show that the two candidates were qualified and their
nomination paper was improperly rejected.”
Burden of Proof
26. It is well settled legal position that burden is on the election petitioner
to prove the pleadings averred in the election petition. The Supreme
Court in Vashist Narain Sharma (supra) held that the petitioner must
discharge the burden of proving that fact and on his failure to do so,
the election must be allowed to stand. Their Lordships further held
that the question is one of fact and has to be proved by positive
Page 21 of 42
(EP No.1/2024)
evidence. If the petitioner is unable to adduce evidence, the only
inescapable conclusion to which the Tribunal can come is that the
burden is not discharged and that the election must stand.
27. In Harikrishna Lal (supra), their Lordships of the Supreme Court
have held that the election petitioner has to demonstrate that the
Returning Officer was not right in arriving at the satisfaction which he
did and as such, the High Court has not erred in not setting aside the
election of the returned candidate.
Evidentiary Value of Admission
28. Section 17 of the Indian Evidence Act, 1872/corresponding new
provision is Section 15 of the Bharatiya Sakshya Adhiniyam, 2023,
defines Admission. It states about the admission which constitutes a
substantive piece of evidence, which can be relied upon for proving
the veracity of the facts incorporated therein. When once the
admission as noted in a statement either oral or documentary is found,
then the whole onus would shift to the party who made such an
admission and it will become an imperative duty on such party to
explain it. In the absence of any satisfactory explanation, it will have
to be presumed to be true. (See Vathsala Manickavasagam and
others v. N. Ganesan and another25.)
29. The Supreme Court in the matter of Union of India v. Moksh
Builders and Financiers Ltd.26 relying upon Bharat Singh v.
25 (2013) 9 SCC 152
26 (1977) 1 SCC 60
Page 22 of 42
(EP No.1/2024)
Bhagirathi27 has held that an admission is substantive evidence of the
fact admitted, and that admissions duly proved are admissible evidence
irrespective of whether the party making them appeared in the witness
box or not, and observed as under: –
“21. … It has been held by this Court in Bharat Singh v.
Bhagirath [AIR 1966 SC 405 : (1966) 1 SCR 606] that an
admission is substantive evidence of the fact admitted, and that
admissions duly proved are‘admissible evidence irrespective of whether the party
making them appeared in the witness box or not and whether
that party when appearing as witness was confronted with
those statements in case it made a statement contrary to those
admissions.” (AIR p. 410, para 19)In taking this view this Court has noticed the decision in
Ajodhya Prasad Bhargava v. Bhawani Shanker Bhargava [AIR
1957 All 1] also.”
30. In the matter of Life Insurance Corporation of India and another v.
Ram Pal Singh Bisen28, it has been held by their Lordships of the
Supreme Court that admission must be proved in accordance with law.
Their Lordships observed as under: –
“31. Under the law of evidence also, it is necessary that
contents of documents are required to be proved either by
primary or by secondary evidence. At the most, admission of
documents may amount to admission of contents but not its
truth. Documents having not been produced and marked as
required under the Evidence Act cannot be relied upon by the
court. Contents of the document cannot be proved by merely
filing in a court.”
27 AIR 1966 SC 405
28 (2010) 4 SCC 491
Page 23 of 42
(EP No.1/2024)
Discussion and Analysis: –
31. Since both the issues are interlinked with each other, they are
considered and decided together.
32. In this case, the election petitioner herein has filed his nomination
papers to contest the election from Legislative Assembly Constituency
No.11, Sitapur (ST), District Surguja. He has filed three sets of
nomination papers before the Returning Officer vide Exs.P-11, P-12 &
P-13 and on the date of scrutiny of nomination papers on 31.10.2023,
one independent candidate namely, Ram Kumar Kindo (PW-4) made
an objection before the Returning Officer stating that the election
petitioner is a Government contractor with the PHE Department and,
therefore, he is disqualified under Section 9A of the Act of 1951 to
contest the election to which the election petitioner has filed reply on
31.10.2023 itself vide Ex.P-16. On the same day i.e. on 31.10.2023,
the Returning Officer sought factual report from the Executive
Engineer, PHE Department on two points namely, (1) whether election
petitioner Munna Lal Toppo was having contract with appropriate
Government in relation to his own trade or business or for execution of
any work undertaken by the said Government, and (2) if yes, then
whether such contract still subsists, which was replied by the
Executive Engineer vide Ex.P-18 in affirmative and thereafter, the
Returning Officer on 31.10.2023, after making summary enquiry,
passed the order Ex.P-19 rejecting his nomination papers holding that
Page 24 of 42(EP No.1/2024)
the election petitioner is disqualified from contesting election by virtue
of Section 9A of the Act of 1951.
33. All the three sets of nomination papers Exs.P-11 to P-13 contain a
clause whether the candidate has any subsisting contract(s) with the
Government. The said clause states as under: –
“(1) to (6) xxx xxx xxx
(7) Whether the candidate has any subsisting contract(s) with the
Government either in individual capacity or by trust or
partnership in which the candidate has a share for supply of any
goods to that Government or for execution of works undertaken
by that Government?. …YES…(Yes/No)
-If Yes, with which Government and details of subsisting
contract ………..
SUB- JALJIVAN MISSION, LICENCE No-
CGeR12718
1. KAMLESHWARPUR 2021-22
2. AMGAON 2021-22
3. BISHUNPUR 2022-23
4. LAIGU 2022-23
5. KAMLESHWARPUR/SAPNADAR 2022-23"
34. Not only this, the election petitioner has also filed an affidavit vide
Ex.P-14 before the Returning Officer in support of nomination papers
declaring in clause (9B) that he has contracts with appropriate
Government and the details are as stated herein: –
“(9B) Contracts with appropriate Government and any public
company or companies
(a) details of contracts entered by the candidate…
SUB- JALJIVAN MISSION, LICENCE No-
CGeR12718
Page 25 of 42
(EP No.1/2024)
1. KAMLESHWARPUR 2021-22
2. AMGAON 2021-22
3. BISHUNPUR 2022-23
4. LAIGU 2022-23
5. KAMLESHWARPUR/SAPNADAR 2022-23
(b) details of contracts entered into by spouse …….NIL…….
(c) details of contracts entered into by dependents
…….NIL…….
(d) details of contracts entered into by Hindu Undivided Family
or trust in which the candidate or souse or dependents have
interest …….NIL…….
(e) details of contracts, entered into by Partnerhsip Firms in
which candidate or spouse or dependents are partners
…….NIL…….
(f) details of contracts, entered into by private companies in
which candidate or spouse or dependents have share
…….NIL…….
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
VERIFICATION
I, the deponent, above named, do hereby verify and
declare that the contents of this affidavit are true and correct to
the best of my knowledge and belief and no part of it is false and
nothing material has been concealed there from. I further
declare that: –
(a) there is no case of conviction or pending case against me
other than those mentioned in items 5 and 6 of Part A and B
above;
(b) I, my spouse, or my dependents do not have any asset or
liability, other than those mentioned in items 7 and 8 of Part A
and items 8, 9 and 10 of Part B above.
Page 26 of 42
(EP No.1/2024)
Verified at …………………..this the …………….day
of……………………..
Sd/-
DEPONENT”
35. Thereafter, Ram Kumar Kindo raised objection vide Ex.P-15 before
the Returning Officer that the election petitioner is a Government
contractor and, therefore, he is disqualified under Section 9A of the
Act of 1951 upon which the Returning Officer noticed the election
petitioner also and the election petitioner filed his reply denying the
allegations made in the objection. The Returning Officer also noticed
the Executive Engineer, PHE Department vide Ex.P-17 on the
following two queries: –
vr,o mijksDr fcanqvksa ds laca/k esa tkap djrs gq, rRdky bl
dk;kZy; dks ;g izfrosnu e; nLrkost miyC/k djkuk lqfuf’pr djsa fd
D;k eqUuk ykyk VksIiks vk0 Lo0 ghjklk; orZeku esa leqfpr ljdkj ds
lkFk vius dkjksckj ;k O;kikj ds vuqØe esa ;k leqfpr ljdkj }kjk
miØkar fdUgha ladekZsa ds fu”iknu gsrq lafonk esa gS\ ;fn gka rks D;k og
lafonk vHkh Hkh thfor gS] bl rF; dk tokc ¼e; nLrkost½ vkt gh
lk;a 5 cts rd fo’ks”k okgd ds gLrs fHktokuk lqfuf’pr djsaA
36. The Executive Engineer, PHE Department submitted reply on the same
day vide Ex.P-18 as under: –
dk;kZy; dk;Zikyu vfHk;Urk] yksd LokLF; ;kaf=dh foHkkx
[k.M&vfEcdkiqj] ftyk&ljxqtk ¼N-x-½i= Ø- 6330@r-‘kk-@dk-v-@yks-Lok-;ka-[k.M@2023@vfEcdkiqj] fnukad 31@10@2023
izfr]
fjVfuZax vkWfQlj
dk;kZy; fjVfuZax vkWfQlj
fo/kkulHkk fuokZpu {ks=&11 lhrkiqj
ftyk& ljxqtk ¼N-x-½
Page 27 of 42(EP No.1/2024)
fo”k;& fuokZpu {ks= Øa-&11 ls vke vkneh ikVhZ ds vH;FkhZ Jh eqUuk yky VksIiks ds
laca/k esa tkap izfrosnu izLrqr djus ds laca/k esaAlanHkZ& vkidk i= Øa-&47@fo-lk-fuokZ-&11@2023] lhrkiqj] fnukad 31@10@2023
&0&
mijksDr fo”k;karxZr ys[k gS fd vkids }kjk pkgh xbZ tkudkjh fuEukuqlkj gS&Øa- fooj.k fVIi.kh
1 D;k eqUuk yky VksIiks vk- Lo- ghjklk; orZeku esa gka
leqfpr ljdkj ds lkFk vius dkjksckj ;k O;kikj ds
vuqØe esa leqfpr ljdkj }kjk miØkar fdUgha ladeksZa
ds fu”iknu gsrq lafonk esa gS\
2 ;fn gka rks D;k og lafonk vHkh Hkh thfor gS\ gkaJh eqUuk yky VksIiks] Bsdsnkj] bZ&iath;u Øekad CGeR12718 ds }kjk yksd
LokLF; ;kaf=dh [k.M vfEcdkiqj esa fuEufyf[kr vuqca/kksa ds rgr~ dk;Z fd;k tk jgk gS&
Øa- vuqca/k Øekad ,oa o”kZ dk;kZns’k Øa- o fnukad dk;Z dh fLFkfr
1 11/DL/2021-22 1165/05.05.2021 dk;Z izxfr ij gSA
2 12/DL/2021-22 1167/08.05.2021 dk;Z izxfr ij gSA
3 48/DL/2022-23 7840/12.11.2022 dk;Z izxfr ij gSA
4 189/DL/2022-23 584/25.01.2023 dk;Z izxfr ij gSA
5 392/DL/2022-23 1474/03.03.2023 dk;Z izxfr ij gSAmijksDr lHkh vuqca/kksa esa orZeku esa dk;Z izxfrjr gSA vr% tkudkjh vkidh vksj
vko’;d dk;Zokgh gsrq izsf”kr gSAlayXu& ¼1½ vuqca/k dh Nk;kizfr&05 ux
lgh@&
dk;Zikyu vfHk;Urk
yksd LokLF; ;kaf=dh [k.M
vfEcdkiqj
37. Thereafter, the Returning Officer by its impugned order Ex.P-19
rejected the nomination papers of the election petitioner by recording
following findings: –
mijksDr izkIr vkifRr] tokc ,oa dk;kZy; dk;Zikyu
vfHk;ark yksd LokLF; ;kaf=dh laHkkx vfEcdkiqj ds izfrosnu e;
nLrkost ds ijh{k.k ls eSa bl fu”d”kZ ij igqaprk gwa fd vH;FkhZ Jh eqUuk
yky VksIiksa vk0 Lo0 ghjklk; tks fd orZeku esa yksd LokLF; ;kaf=dh
Page 28 of 42(EP No.1/2024)
[k.M vfEcdkiqj ds lkFk ty thou fe’ku ds dk;ksZa gsrq lafonk esa
gSa ,oa ;g lafonk vHkh thfor gS rFkk muds }kjk foHkkx ls fy;s x;s
vuqca/kksa ij orZeku esa dk;Z izxfr ij gSA tks fd leqfpr ljdkj ds
lkFk fdUgha ladekZsa ds fu”iknu ds fy;s lafonk gSA vH;FkhZ Jh eqUuk
yky VksIiksa us Lo;a vius tokc esa bl rF; dks Lohdkj fd;k gSA blds
vfrfjDr mUgksaus vius uke funsZ’ku i= ,oa ‘kiFk i= esa Hkh bl ckcr~
tkudkjh nh gS fd mudk ty thou fe’ku ds dk;Z gsrq leqfpr ljdkj
ds lkFk vuqca/k@lafonk gSA ftldk fooj.k mUgksaus fuEukuqlkj fn;k gS&SUB- ty thou fe’ku] yk;lsal uacj & CGeR12718
01& deys’ojiqj 2021&22
02& vkexkao 2021&22
03& fc’kquiqj 2022&23
04& ySxw 2022&23
05& deys’ojiqj@liuknj & 2022&23mijksDr rF;ksa ds vkyksd esa yksd izfrfuf/kRo vf/kfu;e
1951 dh /kkjk 09 d ij /;ku nsuk vko’;d gSA tks ;g izko/kku djrh
gS fd ^^dksbZ Hkh O;fDr fujfgZr gksxk ;fn vkSj tc rd dksbZ ,slh lafonk
fo|eku gS tks mlus leqfpr ljdkj ds lkFk vius O;kikj ;k dkjckj ds
vuqØe esa ml ljdkj dks eky dk iznk; djus ds fy;s ;k ml
ljdkj }kjk miØkar fdUgha ladeksZa ds fu”iknu ds fy;s dh gSA^^vr% vH;FkhZ Jh eqUuk yky VksIiks vk0 Lo0 ghjk lk; dks
eSa yksd izfrfuf/kRo dh /kkjk 09 d ds varxZr fo/kkulHkk dk lnL; pqus
tkus ds fy, fujfgZr ikrk gwaA vr% vkifRrdrkZ }kjk izLrqr vkifRr
Lohdkj dh tkrh gS ,oa Jh eqUuk yky VksIiks vk0 Lo0 ghjk lk; }kjk
fo/kkulHkk {ks= 11 lhrkiqj ¼v-t-tk-½ esa nkf[ky ukekadu i= Ø0
04/AC11/2023/RO, 20/AC11/2023/RO ,oa 21/AC11/2023/RO dks
vfof/kekU; ikrs gq;s vLohdkj vFkkZr izfr{ksfr djrk gwaAmijksDrkuqlkj vkns’k ikfjr fd;k x;k ,oa Ik<+dj lquk;k
x;kA
38. From the aforesaid narration of facts, following facts are quite
evident:-
38.1) The election petitioner while filing nomination papers clearly
asserted that he has a subsisting contract with the appropriate
Government for the supply of goods to that Government or for the
executions of any works undertaken by that Government, and that the
contract is subsisting contract. Thereafter, he has also filed an affidavit
Page 29 of 42(EP No.1/2024)
vide Ex.P-14 in support of his nomination papers and in paragraph
9(B) of the affidavit (Ex.P-14) also, he has reasserted that he has
subsisting contract with the appropriate Government for the supply of
goods or for the executions of any works undertaken by that
Government.
38.2) On objection being made by Ram Kumar Kindo, the Returning
Officer noticed the petitioner also, upon which the petitioner did not
assert that he had no subsisting contract with the appropriate
Government for the supply of goods to that Government or for the
executions of any works undertaken by that Government in the course
of his trade or business, rather he remained vague only stating that he
did not hold the office of profit and he is neither Government servant
nor he is suffering any kind of disqualification.
38.3) On the pointed enquiry raised by the Returning Officer before
the Executing Engineer, PHE Department that whether the petitioner
has undertaken the contract with the appropriate Government in the
course of his trade or business for the supply of goods or for the
executions of any works undertaken by that Government and if yes,
whether such contract still subsists, vide Ex.P-17, the Executive
Engineer submitted his report in affirmative to both the queries. The
Returning Officer relying upon the statement made by the petitioner in
the nomination papers (Exs.P-11 to P-13) at clause (7) read with the
affidavit Ex.P-14 at clause (9B) and further relying upon the statement
Page 30 of 42(EP No.1/2024)
of the Executive Engineer, PHE Department, came to the conclusion
that the election petitioner has subsisting contract entered by him in the
course of his trade or business with the appropriate Government for the
supply of goods or for the executions of any works undertaken by that
Government, and proceeded to reject the nomination papers.
39. Now, the question for consideration would be, whether the facts as
mentioned in paragraphs 37.1 to 37.3 are duly proved before this Court
for which the election petitioner has examined himself as PW-1 and
three other witnesses. He has proved that he has filed nomination
papers for contesting the election for Sitapur Vidhan Sabha
Constituency. However, in his cross-examination paragraph 18, he has
clearly admitted that he has filled the nomination papers vide Exs.P-11
to P-13 on own volition and he has further admitted that the
information contained in paragraph 7 of Exs.P-11 to P-13 with regard
to subsisting contract with the Government, is correct and he has also
candidly admitted the information given by him in shape of clause
(9B) of the affidavit (Ex.P-14) filed by him before the Returning
Officer with regard to subsisting contract with the appropriate
Government, is correct. Similarly, he has also stated about Jaljivan
Mission, but neither there is mention of registration of the said Mission
nor he has filed registration certificate of the said Mission. As such, it
is quite vivid that so far as the information furnished by the election
petitioner in the nomination papers Exs.P-11 to P-13 regarding the fact
Page 31 of 42(EP No.1/2024)
he has subsisting contract with the appropriate Government in which
he has share for supply of goods to the Government or for the
executions of any works undertaken by that Government is correct.
Not only this, thereafter, the petitioner has also given the names of the
subsisting contracts with the appropriate Government.
40. The Supreme Court in Moksh Builders and Financiers Ltd.‘s case
(supra) relying upon Bharat Singh (supra) has clearly held that an
admission is substantive evidence of the fact admitted and admissions
duly proved are admissible evidence. Further, in Ram Pal Singh
Bisen‘s case (supra), it has been held that admission of documents may
amount to admission of contents but not its truth.
41. In the instant case, the election petitioner himself has filed nomination
papers vide Exs.P-11 to P-13 and proved those documents and in
clause (7) of Exs.P-11 to P-13, he has made admission that he has
subsisting contract with the appropriate Government and he has a
share for supply of any goods to that Government or for execution of
works undertaken by that Government and proved the same by making
admission in paragraph 18 of his statement before the Court. As such,
this would constitute the substantive evidence to hold that the
petitioner had a subsisting contract with the appropriate Government
for the supply of goods or for the executions of any works undertaken
by that Government and this was subsisting on the date of filing
nomination papers. Not only this, the petitioner has filed affidavit
Page 32 of 42
(EP No.1/2024)
before the Returning Officer in shape of Ex.P-14 sworn-in before the
Notary Public in which in clause (9B), which was extracted herein-
above in paragraph 33, he has clearly admitted that he has contract
with the appropriate Government giving details of contracts and at the
end of the affidavit, while verifying the contents, he has clearly stated
and declared that “the contents of this affidavit are true and correct to
the best of my knowledge and belief and no part of it is false and
nothing material has been concealed there from”. Thus, affidavit has
been duly sworn-in by the petitioner making admission of subsisting
contract with the appropriate Government for the supply of goods or
for the executions of any works undertaken by that Government and
that was the subsisting contract. There was no reason for the
Returning Officer not to accept the statement made by the election
petitioner duly sworn-in before the Notary Public to hold that he has
valid and subsisting contract with the appropriate Government for the
supply of goods or for the executions of any works undertaken by that
Government.
42. Apart from that the objection raised by Ram Kumar Kindo – objector,
was duly served to the petitioner which he replied, but did not take the
stand that contract with the District Water and Sanitation Mission and
the Village Water and Sanitation Committee would not fall within the
meaning of appropriate Government under Section 9A read with
Section 7(a) of the Act of 1951 and, therefore, he is not disqualified
Page 33 of 42
(EP No.1/2024)
from contesting the election and Section 9A of the Act of 1951 would
not attract to disqualify him and his reply was totally vague which he
has also proved vide Ex.P-16.
43. Lastly, before passing the order, the Returning Officer also sought
pointed query from the Executive Engineer, PHE Department that
whether the election petitioner has subsisting contract with the
appropriate Government for the supply of goods or for the executions
of any works undertaken by that Government, which the Executive
Engineer replied vide Ex.P-18 that he has subsisting contract with the
appropriate Government which has been proved by Executive
Engineer Shankar Prasad Mandavi (PW-3) examined on behalf of the
petitioner. Thus, ultimately, Returning Officer Ravi Rahi who has
been examined as PW-2 before this Court taking into consideration the
admission made in clause (7) of Exs.P-11 to 13, reply filed by the
election petitioner and also considering the objection made by Ram
Kumar Kindo and reply to the pointed queries submitted by the
Executive Engineer, PHE Department, proceeded to reject the
nomination papers. The Returning Officer has been examined by the
election petitioner as witness No.2 and he has also admitted that the
election petitioner himself has admitted in the nomination papers as
well as in the affidavit that he has subsisting contract with the
appropriate Government for the supply of goods or for the executions
Page 34 of 42
(EP No.1/2024)
of any works undertaken by that Government and that was the main
reason for rejecting the nomination papers.
44. As such, the facts mentioned in paragraphs 37.1 to 37.3 are clearly
established by the evidence of the petitioner and his witnesses from
which it is quite apparent that the election petitioner has admitted that
on the date of filing nomination papers, he has valid and subsisting
contract with the appropriate Government for the supply of goods or
for the executions of any works undertaken by that Government. The
documents filed by the election petitioner vide Exs.P-11 to P-14 and
the admission made by him which is duly proved by him are clearly
binding on him on the basis of which the Returning Officer has passed
the order impugned rejecting his nomination papers. Not only this, the
petitioner had two opportunities to explain that the subsisting contract,
if any, is not with the appropriate Government within the meaning of
Section 9A read with Section 7(a) of the Act of 1951 and first
opportunity was available to him when the Returning Officer noticed
him on the objection of the objector, but he did not avail the
opportunity and did not explain, though filed reply vide Ex.P-16,
however, did not take firm stand that the contract was with the District
Water and Sanitation Mission and the Village Water and Sanitation
Committee, which is not “appropriate Government” within the
meaning of Section 9A read with Section 7(a) of the Act of 1951 and,
therefore, he is qualified to contest the election from Sitapur (ST)
Page 35 of 42
(EP No.1/2024)
Assembly Constituency, however, though the petitioner before this
Court took stand that the District Water and Sanitation Mission is a
separate body/local unit which does not come under the definition of
“appropriate Government”, but led no evidence in that regard.
45. In this fact-situation, since the election petition before this Court under
Section 100(1)(c) of the Act of 1951 is an original proceeding, it was
open to the election petitioner to file additional documents
demonstrating that he was not disqualified under Section 9A read with
Section 7(a) of the Act of 1951, as he was not having any subsisting
contract in the course of his trade or business with the appropriate
Government and the contract was with the District Water and
Sanitation Mission and the Village Water and Sanitation Committee,
which would not fall within the meaning of “appropriate Government”
under Section 9A read with Section 7(a) of the Act of 1951. However,
in shape of additional material before the Court, since the burden of
proof was on the petitioner to prove that he was not disqualified from
contesting the election under Section 9A read with Section 7(a) of the
Act of 1951, the petitioner has only filed copy of the order Ex.P-1 by
which the District Water and Sanitation Mission has been constituted
and further filed document Ex.P-2 by which certain directions have
been given by the State Government to the Collectors and Executive
Engineers & Member Secretaries, District Water and Sanitation
Mission/PHE Department and similarly, Ex.P-3 has also been filed by
Page 36 of 42(EP No.1/2024)
which financial power has been conferred by the State Government
upon the District Water and Sanitation Mission up to ₹ 5 crores and
thereafter, copy of the contract has been filed vide Exs.P-4 to P-10
which are contract documents demonstrating that the petitioner has
entered into contract with the Executive Engineer & Member
Secretary, District Water and Sanitation Mission. Similarly, Exs.P-20
& 21 are documents relating to Operational Guidelines for the
Implementation of Jal Jeevan Mission Har Ghar Jal and Ex.P-25 is the
Guidelines issued by the Election Commission of India for the
Returning Officers for consideration of complaints for rejection of
nomination papers on grounds of disqualification under Section 9A of
the Act of 1951.
46. As such, no additional documents except the aforesaid one have been
filed by the petitioner to establish the fact that the District Water and
Sanitation Mission and the Village Water and Sanitation Committee is
a separate body or society or trust which do not come under the
purview of “appropriate Government” within the meaning of Section
9A read with Section 7(a) of the Act of 1951, as it was the burden upon
him to establish the said fact being the election petitioner, which he
failed to discharge in satisfaction of this Court.
47. Thus, from the aforesaid analysis, it is quite evident that the election
petitioner has filed his nomination papers vide Exs.P-11 to P-13 in
which in clause (7) he has admitted that he has subsisting contract in
Page 37 of 42
(EP No.1/2024)
the course of his trade or business with the appropriate Government
for the supply of goods or for the executions of any works undertaken
by that Government and proved the same by his own evidence, as he
has been examined as PW-1 and in paragraph 18 admitted that the
facts mentioned in clause (7) of the nomination papers (Exs.P-11 to P-
13) are correct. He has also admitted that the contents of the affidavit
(Ex.P-14) filed before the Returning Officer regarding subsisting
contract in the course of his trade or business with the appropriate
Government for the supply of goods or for the executions of any works
undertaken by that Government, are also correct. Surprisingly, the
election petitioner though took stand in the election petition that he has
contract with the District Water and Sanitation Mission and the Village
Water and Sanitation Committee, but they would not fall within the
definition of appropriate Government under Section 9A read with
Section 7(a) of the Act of 1951, however, did not lead any evidence
before this Court and he confined his evidence to the extent of proving
the nomination papers Exs.P-11 to P-13 and the affidavit Ex.P-14 filed
in support of the said nomination papers.
48. The petitioner had an opportunity to take stand after filing nomination
papers when he was noticed by the Returning Officer and he filed
reply vide Ex.P-16 that he has no subsisting contract with the
appropriate Government for the supply of goods or for the executions
of any works undertaken by that Government and his contract is with
Page 38 of 42
(EP No.1/2024)
the District Water and Sanitation Mission and the Village Water and
Sanitation Committee which would not fall under the definition of
appropriate Government under Section 9A read with Section 7(a) of
the Act of 1951, but he did not took that stand before the Returning
Officer while filing his reply to the objection filed by Ram Kumar
Kindo. The Returning Officer in response to the objection filed by
Ram Kumar Kindo noticed the Executive Engineer, PHE Department
on two points whether the election petitioner has subsisting contract
with the appropriate Government for the supply of goods or for the
executions of any works undertaken by that Government and whether
the said contracts are subsisting, which the Executive Engineer replied
in affirmative vide Ex.P-18. Again the election petitioner has
examined Shankar Prasad Mandavi as witness No.3 and proved the
contents of the reply Ex.P-18, but did not contradict that he has given
incorrect information that his existing contracts are not with the
appropriate Government and his contracts are with the District Water
and Sanitation Mission and the Village Water and Sanitation
Committee, it was open to the petitioner to take such stand and cross-
examine Shankar Prasad Mandavi, Executive Engineer, PHE
Department. As such, again the petitioner though has taken stand
before this Court in the election petition that the District Water and
Sanitation Mission and the Village Water and Sanitation Committee
are not appropriate Government, but did not lead any evidence and in
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that regard, he has examined Shankar Prasad Mandavi (PW-3) who has
only proved that the information given vide Ex.P-18 holding that the
election petitioner has subsisting contract with the appropriate
Government for the supply of goods to that Government or for the
executions of any works undertaken by that Government, is the correct
information.
49. Lastly, the Returning Officer vide Ex.P-19 rejected the nomination
papers of the election petitioner. He has been examined as witness
No.2 and he narrated the action taken on the nomination papers and
has clearly admitted that the only reason to reject the nomination
papers is the information given by the Executive Engineer, PHE
Department that the election petitioner has subsisting contract with the
appropriate Government. The petitioner has cited him as witness and
did not cross-examine him on the point that his contract is with the
District Water and Sanitation Mission and the Village Water and
Sanitation Committee, which is not the appropriate Government and
thus, he has no subsisting contract with the appropriate Government.
As such, at this stage also the petitioner has failed to lead any evidence
except proving what transpired before the Returning Officer. Even
independently, no evidence has been led by the election petitioner to
prove the fact that his contracts mentioned in the nomination papers
and the affidavit are not with any appropriate Government which the
petitioner was obliged to prove as express plea has been taken in this
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regard, rather he has clearly admitted in shape of nomination papers
Exs.P-11 to P-13 & affidavit Ex.P-14 and before the Court, the
statement made in Exs.P-11 to P-13 & Ex.P-14 which clearly
constitute substantive piece of evidence and he did not avail the
opportunity to explain his stand already taken before the Returning
Officer and which has been proved before this Court.
50. The petitioner has named Dr. Sarweshwar Narendra Bhure, who was
posted as Managing Director, Jal Jivan Mission, to examine him, but
however, on 2-2-2026 he was given up and was discharged. As such,
the fact whether the petitioner’s alleged contract with the District
Water and Sanitation Mission and the Village Water and Sanitation
Committee is with the appropriate Government or not or the status of
the said Mission/Committee, could not be established.
51. The election petitioner cannot resile from those documents which also
even persuaded the Returning Officer to rely upon his own admission
that he has subsisting contract in the course of his trade or business
with the appropriate Government. Thus, the petitioner has failed to
demonstrate that rejection of his nomination papers was improper.
Merely filing certain documents showing that he had contract with the
District Water and Sanitation Mission and the Village Water and
Sanitation Committee would not suffice. The petitioner has failed to
discharge the burden placed upon him to prove that he was not
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disqualified from contesting the election and that he was qualified for
contesting the election and his nomination paper was wrongly rejected.
52. True it is that Article 299 of the Constitution of India is mandatory in
nature and Governmental contract must be executed as per the manner
indicated in Article 299, but mere non-execution of contract in the
manner indicated under Article 299 would not relieve the election
petitioner to prove the fact that he was qualified to contest the election
and he did not suffer any disqualification on the date of rejection of his
nomination paper. As such, the election petitioner has failed to plead
and establish that his nomination papers were improperly rejected by
the Returning Officer within the meaning of Section 100(1)(c) of the
Act of 1951.
53. The decisions cited by learned counsel appearing on behalf of the
petitioner namely, Mulamchand (supra), K.P. Chowdhry (supra),
Bhikraj Jaipuria (supra), Konappa Rudrappa Nadgouda (supra),
Shibu Soren (supra), Jagan Nath (supra), Kanta Kathuria (supra)
and Sushil Kumar Mehta (supra), are quite distinguishable to the
facts of the present case.
Relief and Cost: –
54. As a fallout and consequence of the aforesaid discussion, the election
petition deserves to be and is accordingly dismissed. In the facts and
circumstances of the case, parties shall bear their own cost(s).
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55. A copy of this order be sent to the State Election Commission
forthwith as required by Section 103 of the Act of 1951.
Sd/-
(Sanjay K. Agrawal)
Judge
Barve/Soma