# ll4 LOKNATH PADHAN v. BIRENDRA KUMAR SAHU January 1.6. 1974

- **Citation:** [1974] 3 S.C.R. 114
- **Court:** Supreme Court of India
- **Decided:** 1971-02-07
- **Case number:** CIVIL APPELLATE JuRISDlCTION : Civil Appeal No. 644 of 1972
- **Bench:** P. N. Bhagwati, l'. K. GOSWAMI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ll4-loknath-padhan-v-birendra-kumar-sahu-january-1-6-1974-6227
- **Pages:** 7

## Headnote

Representation of the People Act (43 ofl951) s. 116A-Electlon petiti'on challe,.g··
ing
respondent's electlon ·to State Legislative Assembly-Dismissed-Dissolution
of Assembly pending appeal to this Court-Effect on appeaf.
The appellant filed an ekction petition challenging the election of the respondent
to the State legislative Assembly alleging that there was a substising contract, entered
into by the respondent in the course of his trade and business, with the State
Government, for the e'l(ecution of works undertaken by the Government, and that
therefore he was disqualified under s .. 9A of the Representation of the People Act,
1951. The High Court dismissed the petition holding that the contracts were not
undertaken by the respondent in his individual capacity in the course of his trade and
business but were on behalf of the Gram Panchayat of which he was the Naib Sarpanch,
and also that the contracts had been fully carried out by the respondent long before
the date of his nomination and that therefore, the Explanation to s. 9A was appli·
cable and took his case out of tLe section. While the appeal was pending in thi'i
C-0urt the State Legislative Assembly was dissolved under An. 174(2)(6) of the Con ..
stitution. The respondent raised the preliminary objection at the hearing of the appeal
that in view of the dissolution of the assembly it was academic to decide whether or
not the respondent was disqualified under the section.
·
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HELD : The law relating to abatement of election petitions is exhaustively dealt
with in Chap.· VI of Part IV flf the Act and since there is nothing in the Act which
provides for abatement of election petitions when the legislature is dissolved the dis·
~o1ution does not result .in the abatement of an election petition. But the question
in the present case is not whether the appeal has abated on the dissolution of the State
Assembly, but whether in view of the dissolution of the State Assembly, it has become academic to decide the appeal. In the instant case, even if it is found that the
respondent was disqualified under s. 9A it would have no practical consequence,
because invalidation of his election after the dissolution of the State Assembly,
unlike the case of invalidation for corrupt practice, woulJ have no effect whatsoever. Therefore, the State Legislative assembly having been dissolved during the
pendency of the appeal it is now wholly academic to consider whether the respondent was disqualified under s. 9A at the date of his nomination and since that is the
only ground on which the election of. the respondent is challanged it would be fl'
tile to hear the appeal on n1erits. [ll7D-E; 1200] ·
ShN1dhan Singh v. Mahan Lal, [1959} 3 S.C.R. 417, followed.
CIVIL APPELLATE JuRISDlCTION : Civil Appeal No. 644 of
1972
From the judgment and order dated the !st February 1972 of the
Orissa High Court in Election Petition No. 3 of 1971.
Gobind Das, and P. H. Parekh for the appellant.
Narayan Nettar, V.J. Francis and B. Kanta Rao, fo~ the respondent.

## Text

ll4
LOKNATH PADHAN
v.
BIRENDRA
KUMAR SAHU
January 1.6. 1974
[P. N.
BHAGWATI AND
l'. K. GOSWAMI, JJ.)
Representation of the People Act (43 ofl951) s. 116A-Electlon petiti'on challe,.g··
ing
respondent's electlon ·to State Legislative Assembly-Dismissed-Dissolution
of Assembly pending appeal to this Court-Effect on appeaf.
The appellant filed an ekction petition challenging the election of the respondent
to the State legislative Assembly alleging that there was a substising contract, entered
into by the respondent in the course of his trade and business, with the State
Government, for the e'l(ecution of works undertaken by the Government, and that
therefore he was disqualified under s .. 9A of the Representation of the People Act,
1951. The High Court dismissed the petition holding that the contracts were not
undertaken by the respondent in his individual capacity in the course of his trade and
business but were on behalf of the Gram Panchayat of which he was the Naib Sarpanch,
and also that the contracts had been fully carried out by the respondent long before
the date of his nomination and that therefore, the Explanation to s. 9A was appli·
cable and took his case out of tLe section. While the appeal was pending in thi'i
C-0urt the State Legislative Assembly was dissolved under An. 174(2)(6) of the Con ..
stitution. The respondent raised the preliminary objection at the hearing of the appeal
that in view of the dissolution of the assembly it was academic to decide whether or
not the respondent was disqualified under the section.
·
.o
HELD : The law relating to abatement of election petitions is exhaustively dealt
with in Chap.· VI of Part IV flf the Act and since there is nothing in the Act which
provides for abatement of election petitions when the legislature is dissolved the dis·
~o1ution does not result .in the abatement of an election petition. But the question
in the present case is not whether the appeal has abated on the dissolution of the State
Assembly, but whether in view of the dissolution of the State Assembly, it has become academic to decide the appeal. In the instant case, even if it is found that the
respondent was disqualified under s. 9A it would have no practical consequence,
because invalidation of his election after the dissolution of the State Assembly,
unlike the case of invalidation for corrupt practice, woulJ have no effect whatsoever. Therefore, the State Legislative assembly having been dissolved during the
pendency of the appeal it is now wholly academic to consider whether the respondent was disqualified under s. 9A at the date of his nomination and since that is the
only ground on which the election of. the respondent is challanged it would be fl'
tile to hear the appeal on n1erits. [ll7D-E; 1200] ·
ShN1dhan Singh v. Mahan Lal, [1959} 3 S.C.R. 417, followed.
CIVIL APPELLATE JuRISDlCTION : Civil Appeal No. 644 of
1972
From the judgment and order dated the !st February 1972 of the
Orissa High Court in Election Petition No. 3 of 1971.
Gobind Das, and P. H. Parekh for the appellant.
Narayan Nettar, V.J. Francis and B. Kanta Rao, fo~ the respondent.
The Judgment of the Court was delivered by
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BHAGWATI J.-This ajli'eal is preferred under s. 116A of the Representation of.the Peo;>le Act, 1951 (hereinaf;er referred to as the Act)
agamst the Judgment of the Onssa High Court d1smissmg an election
petition filed by the appellant challenging the election of the responH
dent to the Orissa Legislative Assembly from Melchhamunda constituency in Sambhali)ur di;trict of the State of Orissa.
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LOKNATH v. B. K. SAHU (Bhagwati, !.)
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The facts giving rise to the appeal may be briefly stated as follows:
There were general elections to the Orissa Legislative Assembly sometimes in the beginning of March 1971. The last date for filing nomination papors was fixed on 7th February, 1971 and on or before that date
the appellant and the respondent both filed their respective nomination
papers for the seat from Melchhamunda constituency.
On 9th February, 1971, which was the date fixed for scrutiny of the nomination
papers, the appellant raised an objection against the nomination of the
respondent on the ground that he was disqualified under s. 9A of the
Act. Section 9A provides inter a/ia that a person shall be disqualified
if, and for so long as, there subsists a contract entered into by him in
the course of his trade or business with the appropriate Government
for the execution of any works undertaken by that
Government.
There is an explanation to this section which says that where a contract has been fully performed by the person by whom it has been entered
into with the appropriate Government, the contract shall be deemed
not to subsist by reason only of the fact that the Government has not
performed its part of the contract either wholly or in part. The allegation of the appellant was that the respondent had entered into five
contracts with the Government of Orissa for the executio11 of works
undertaken by that Government and these contracts were still subsisting and the respo11dent was, therefore, disqualified from contesting
the election under s. 9A. This objection raised on behalf of the appellant was overruled by the Returning Officer and the nomination of the
respondent was accepted. The polling thereafter took place on 5th
March, 1971 and the respondent was declared elected on I Ith March,
1971. The appellant thereupon filed an election petition ill the High
Court of Orissa calling in question the election of the respondent on
the ground that he was disqualified from bdng elected as a member by
reason of s. 9A. The case of the appellant, as laid down in the election petition, \vas that, at the date of nomination five contracts \\'ere
subsisting between the respondent and the Government of Orissa in
respect of the following works entrusted through the Gaisilet Panchayat
Samiti : (1) construction of the Mahila Samiti building at Borumunda,
(2) construction of the community recreation centre at Borumunda,
(3) construction of the village level lady worker's quarter at Borumunda, (4) construction of a package village level worker's quarter at
Gaisilet and (5) construction of the Borumunda canal, and on account
of the subsistance of these five contracts the disqualification under s.
9A was attracted. Though the appellat)t relied on subsistance of
these five contracts in the election· petition, he conceded at the time of
the arguments that contracts (4) and (5) may not be taken into account
and rested his case solely on the ground that contracts (I) to (3) were
subsisting between the respondent and the Government of Orissa.
The respondent denied that he had entered into any of these contracts
with the Government of Orissa in the course of his trade or business
or that any such contract was subsisting between him and the Government of Orissa at the date of nomination. The respondent aliened
that the works undertaken by him under contracts (I) to (3) were part
of the Second Five Year Plan and they were to be carried out by the
Gram Panchayat on the basis of 50% subsidy from the Government
and 50 % contribution by the people in terms of money or labour and
I I 6
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
it was as leader of the people and Naib Sarpanch that he had underA
taken these works on behalf of the Gram Panchayat and not in his
individt:al capacity in course of his trade or business. The· contention
of the respondent, therefore, was that s. 9A had no application in
his case. It was also urged by the respondent that in any event these
contracts had been fully performed by him before the date of nomination and his case was, therefore, covered by the Explanation to s. 9A.
The respondent also contended in the alternative that even if the stand
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taken by the Block Development Officer on behalf of the Gaisilet
Panchayat Samiti was correct, namely, that the respondent had failed
to carry out his obligations under th~se contracts and the Government
of the Gaisilet Partchayat San1iti. had, therefore, becon1e entitled to
recover the amount advanced to the respondent and for that purpose
issued the requisitions for certificate of recovery on 8th January,
1967, the case of the respondent was outside s. 9A because in that .
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event the contracts were discharged by breach prior to 8th January,
1967 and were no longer subsisting at the date of nomination. The
High Court trying the election petition took the view that the contracts
in question were not undertaken by the respondent in his individual
capacity in course of his trade or business, but they were undertaken
on behalf of the Gram Panchayat in terms of the schemes envisaged
in the Se"ond Five Year Plan as the respondent was the leader of the
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people and Naib Sarpanch of the Gram Panchayat, and the disqualification under s. 9A was, therefore, not attracted in the case of
the respondent. The High Court also held, relying on the evidence
of two witnesses, that the contracts had been fully carried out by the
respondent Jong before the date of nomination and the Explanation
was, therefore, applicable and that took the case of the respondent
out of the inhibition of s. 9A. The view taken by the High Court
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thus was that the respondent was not disqualified from contesting the
election under s. 9A and on this view the High Court dismissed the
election petition. Hence the present appeal under s. l 16A of the Act.
Whilst the appeal was pending in this Court, the Orissa Legislative
Assembly was dissolved by the Governor on 3rd March, 1973 under
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Art. 174(2)(b) of the Constitutioi1. The respondent, therefore, raised
a preliminary objection at the hearing of the appeal before us that in
view of the dissolution of the Orissa Legislative Assembly, it was acadeinic to decide whether or not the respondent was disqualified from
being a candidate under s. 9A and we should accordingly decline to
hear the ap~al on merits. The argu1nent of the respondent \Vas that
unless there is a living issue between the parties the Court would not
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proceed to decide it : it would not occupy its time by deciding what is
purely an academic question which has no sequitur so far as the position of the parties is concerned. Here, contended the respondent.
even if the appellant was able to satisfy the Court that on the date of
the nomination, the respondent was disqualified under s. 9A, it would
be a futile exercise, because the Orissa Legislative Assembly being
dissolved, the setting aside of the election of the respondent would
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have no meaning or consequence and hence the Court should refuse
to embark on a <liscussion of the merits of the question arising in the
appeal. We think there is great force int''' preliminary contention
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LOKNATII v. B. K. SAHU (Bhagwati, J.)
117
urged on behalf of the respondent. It is a well settled practice recognised and followed in .India as well as England that a Court should
not undertake to decide an issue, unless it is a living issue between the
partios. If an issue is purely academic in that its decision one way or
the other would have no impact on the position of the parties, it would
be waste of public time and indeed not proper exercise of authority
for the Court to engage itself in deciding it.
Speaking of the House
of Lords, Viscount Simon, L.C. said in the course of his speech in
Sun Life Assurance Co. of Canada v. Jervis (I) "I do not think that it
would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an acade-
. mic question, the answer to which cannot affect the respondent in any
way", and added : "-it is an essential quality of an appeal fit to be
disposed of by this House that there should exist between the parties to
a matter in actual controversy which the House undertakes to decide as a living issue". This statement must apply equa1ly in case of
exercise of appellate jurisdiction by this Court. It would be clearly
futile and meaningless for the Court to decide an academic question, ·
the answer to which wquld not affect the position of one party or the
other. The Court would not engage in a fruitless exercise. It would
refuse to decide a question, unless it has a bearing on some right or
liability· in controversy between the parties. If the decision of a question
would be wholly ineffectual so far as the parties are concerned, it would
· be not only unnecessary and pointless but also inexpedient to decide
. it and the Court would properly.decline to do so. In the present case,
the Orissa Legislative Assembly being dissolved, it has become academic
to consider whether on the date when the nomination was filed, the
respondent was disqualified under s. 9A. Even if it is found that
he was so disqualified, it would have no practical 9onsquence, because
the invalidation of his election after the dissolution of the Orissa Legislative Assembly would be meaningless and ineffectual. It would not
hurt him. The disqualification would only mean that he was not
entitled to contest the election on the date when he filed his nomination. It would have .no consequences operating in future. It is posF
sible that the respondent had a subsisting contract with the Govern-
. ment of Orissa at the date of nomination, but that contract may not
be subsisting now. The finding that the respondent was disqualified
would be based on the facts existing at the date of nomination and it
would have no relevance so far as the position at a future point of time
-· -- may be concerned, and th~refore, in view of the dissolution of the Orissa
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. Legislative Assembly; it would have no practical interest for either of
the parties. Neither would it benefit the appellant nor should it affect
the respondent
in any practical sense and it would be wholly
academic to consider wl1ether the respondent was disqualified on the
date of nomination.
The position might be different if the allegation against · the
respondent were of
corrupt practice. Then it would not be
academic to consider whether or not the respondent was guilty of
the corrupt practice charged against him, because. a finding of
{I) [1944! A. C. 111.
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SUPREME COURT REPORTS
[ 1974] 3 S.C.:R.
corrupt practice has serious consequences. If the
respondent
is found guilty of corrupt practice during the election, not
only his election
would
be
declared
void,
but
he would
also incur certain electoral disqualifications.
Sec. SA provides
that a person found guilty of a corrupt practice by an order under s.
99 shall be disqualified for a priod of six years from the date on which
that order takes effect. The purity of elections is of utmost importance
in a democratic set up and the law has, therefore, taken serious note
of practice in elections and laid down a disqualification for a period of
six years on an order being made by the High Court recording a finding
of corrupl practice at the time of disposing of the election petition. It
is, therefore, obvious -that when a corrupt practice is charged against
the respondent in art election petition. the trial of the election petition must proceed to its logical end and it should be determmed whether the corrupt practice was committed by the respondent or not.
As pointed out by this Court in Sh:·odhan Si11gh v. Mohan Lal (1)
"no one can be allowed to corrupt the course of an election and get
away with it either by resigning his membership or because of the fortuitous circumstance of the assembly having been dissolved. The
public are interested in seeing that those who had corrupted the course
of an election are dealt \Vith in accordance \Vith law." The decision
of the question whether corrupt practice was committed by the respondent or not would not, therefore, be academic and the Court
would have to decide it, even if in the n1eantin1e the Legislature is
dissolved. That was precisely the view taken by this Court in Sheodhan
Sin~h v. Mohan Lal (l). In that case the election of the respondent
to the Uttar Pradesh Legislative Assembly was challenged by the
appellant in an election petition on the ground that the respondent was
guilty. of corrupt practice during the election. The Uttar Pradesh
LegislatiYe Assembly was dissolved by the President during the pendency of the election petition before the High Court and a preliminary
objection was, therefore, raised on behalf of the respondent that the
election petition had ceased to be maintainable on account of the dis~
solution of the Uttar Pradesh Legislative Assembly. The High Court
rejected the preliminary objection but on merits it took the view that
corrupt practice was not proved and accordingly dis1nissed the election
petition. The appellant thereupon preferred as appeal to this Court
and in the appeal also the same prelin1inary objection was repeated
on beholf of the respondent. This Court negatived the preliminary
objection. Hegde, J., speaking on behalf of the Court emphasised
that the charge against ·..,the respondent was of corrupt practice and
pointed out that if the creation of the appellant that the respondent
\Vas gujJty of corrupt practice \Vas found to be true, then not only his
election would be declared void but he would also be liable to incur
certain sectoral disqualification, and therefore. in the interest ofpuritv
of elec:ions it was necessary that "those who had corrupted the cours~
of an election are dealt with in accordance with law", and this purpose
would stand defeated if the election petition were held to become infructuous on the dissolution of the Assembly. The learned Judge
then proceeded to consider the relevant elections of the Act and after
'(1) [19591 3 S.C.R. 417.
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'LOKNAm v. B. ii. SAHU (Bhaf{Wati, !.)
119
referring to them, summaris~d his conclusion by saying : "From the
above provisions it is seen that in an election petition the contest is
really between the constituency on the one side and the person or persons
complained of on the other. Once the machinery of the Act is moved
by a candidate or an elector, the carriage of the case does not entirely
rest with the petitioner. The reason for the elaborate pro,·isions
noticed by us earlier is to ensure to the extent possible that the persons
who offered the election law are not allowed to avoid the consequences
of their misdeeds." It will he seen that the emphasis in this decision
was on the fact that the charge against the respondent was of corrupt
practice and it was in this context that the Court held that where
corrupt practices is alleged against the respondent in an election petition, the dissolution of the Legislature during the pendency of the election petition does not render it infructuous. We fail to see how the
ratio of this decision can have any application in the pres,ent case.
Here there is no charge of any corrupt practice against the respondent.
The 011ly ground on which the election of the respondent is sought to
be invalidated is that he was disqualified at the date of nomination
under s. 9A. This disqualification does not involve any act corrupting the course of an election. It has no other consequence than that
of making the particular election void. It does not entail any electoral disqualification for the future. There is, therefore, no analogy
between the two situations and this decision cannot be called in aid
by the appellant.
The appellant, however, relied on the following observations in
this decision and contended that these observations clearly lay down
that an election petition does not become infructuous on the dissolution of the Legislature and the petioner is entitled to have the decision of the Court upon it, notwithstanding the dissolution of the
Legislature :
·
"The election petitions in this country are solely regulated
by statutory provisions. Hence unless it is shown that some
statutory provision directly or by necessary implication prescribes that the pending election petitions stand abated beca"se of
the dissolution of the Assembly, the contention of the
respondent cannot be accepted".
''.The law relating to withdrawal and abatement of election
petitions is· exhaustively dealt with in Chapter JV of Part VI of
the Act. In deciding whether a petition has abated or not we cannot travel outside the provision providing for the dropping of an
election petition for any reason other than those mentioned
therein. The act does not provide for the abatement of an election petition either when the returned candidate whose election is
challenged resigns or when the assembly is dissolved. As the
law relating to abatements and withdrawal is exhaustively dealt
with in the Act itself no reliance can be placed on the provisions
of the Civil Procedure Code nor did the learned Counsel for the
respondent bring to our notice any provision in the Civil Procedure
Code under which the election petition can be held to have abated"
120
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
We fail to see how these observations can be of any help to the appellant. They deal with a totally different contention than the one advanced before us. It may be noted that in this case the charge
against the respondent was of corrupt practice and it could not,
therefore, be successfully urged on behalf of the respondent that the
decision of the question arising in the appeal had become academic
on the dissolution of the Uttar Pradesh Legislative Assembly. The
only contention which the respondent was, therefore, left with and
which he could possibly advance was that an election petition must be
held to abate on the dissolution of the Legislature and it was this contention which was dealt with and negatived in these observations.
This Court pointed out that the law relating to abatement of election
petitions is exhaustively dealt with in Ch. IV of Part VI of the Act and
since there is nothing in the Act which provides for abatement of an
election petition when the Legislature is dissolved, it must be held that
the dissolution of the Legislature does not result in abatement of the
election petition. We express our whole hearted concurrence with this
view. But the question before us is not whether the appeal in the present case abated on the dissolution of the Orissa Legislative Assembly.
That is not the contention raised on behalf of the respondent. The
respondent does not say that the appeal has abated and must, therefore,
be dismissed. What the respondent contends is that in view of the
dissolution of.the Orissa Legislative Assembly, it has become academic
to decide the appeal and hence we should decline to hear it. That is
a wholly different contention which is not covered by the observations
quoted above. We do not, therefore, think this decision throws
any light on the 0 c::tention raised before us. It does not compel us
to take a different view from the one we are inclined to take· on principle.
We are,
therefore, of the view that, the Orissa Legislative
Assembly being dissolved during the pendency ofthis appeal, it is now
wholly academic to consider whether the respondent was disqualified
under s. 9A at the date of nomination and since that is the only ground
on which election of the respondent is challenged, we think it would be
futile to hear this appeal on merits. We accordinely dismiss the
appeal with no orders as to costs all throughout. -
V.P.S.
Appeal dismissed,
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