Find a Lawyer

(Against the judgment, dated 29‑1‑1986 of the Election Tribunal, N.‑W. F. P., Peshawar, in Election Petition (P. F. 2 of 1985).

(a) Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977)‑

‑--Art. 10(8)‑Disqualification‑Contract of returned candidate with Government Department‑Work completed by contractor within stipulated time, before filing of nomination paper and scrutiny thereof‑Delay in measurement of work done by contractor or pay ment of bills or refund of security is not a factor to be taken into con sideration at all while determining effect of disqualification provision, the interest or share of contracting party in the execution of work and performance of contract.

(b) Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1997)‑--

‑‑ Art. 10(8)‑Disqualification‑Words "execution of contract" "Existence of contract" or "repudiation of contract"‑Meaning. [Words and phrases].

The word "execution" bas been used with the word "contract", and the word "contract" has been used twice in a manner in which "nobody else uses". The word "execution" has been defined as "carrying out some act or course of conduct to its completion", "completion of an act". The strict rule of law of contract requires at least two parties to bring into existence a "contract". Since its termination is the converse of its creation, principle demands that it should not be recognised unless this is what both parties intend. An unaccepted repudiation is a thing writ in water and of no value to anybody ; it confers no‑ legal rights of any sort or kind". The law recognizes discharges of a contract in various manner, by perform ance of the obligations by all the parties to the contract, by a result stipulated in the contract itself, by rescission, by frustration or by a statute.

Black's Law Dictionary; Howard v. Pickford Tool Co. Ltd. (1951) 1 K 13 417 ; White & Carter (Councils) Ltd. v. McGregor (1961) 3 All E R 1178 ; Harbutt's Plasticine Ltd. v. Wayne Tank and Pump Co. Ltd. (1970) 1 All E R 225 and Nutton v. Wilson (1889) 22 Q B 748 ref.

(c) Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977)‑

---Art. 10(8)‑Disqualification‑Contract with Government Depart ment‑‑Candidate must have interest or share in a contract and must also have interest or share in execution of that contract‑When contract on part of candidate has been performed or he has com municated a clear unequivocal intention to put an end to contract then he will not be having an interest or share such as may disqualify him‑Where period of completion of work had already expired and there was no evidence that work was not physically completed by contractor by that date, no disqualification, held, was suffered by contractor on the nomination day.

Satyendra Kumar Das and another v. Chairman of the Municipal Commissioners of Dacca and others A I R 1931 Cal. 288 ; C. V. Jasani v. Moreshwar Parashram and others A I R 1954 S C 236 ; Union of India v. Messrs Chaman Lal Loona & Co. A I R 1957 S C 652 ; Laliteshwar Prasad Sabi v. Bateshwar Prasad and others A I R 1966 S C 580, Abdul Rahman Khan v. Sadasiva Tripathi A I R 1969 S C 302, Smt. Aslhing v. L. S. John A I R 1984 S C 988 ; Khan Muhammad, Yusuf Khan Khattak v. S. M. Arub and 2 others P L D 1973 S C 160 ; O Carrol v. Hastings (1905) 2 Ir. R. 590 ; S. Munishamappa v. B. Venkatarayappa and others A I R 1981 S C 1177 ; Haji Muhammad Siddiq v. Babu Karam Bakhsh and 3 others P L D 1971 Lah. 912 ; Black's Law Dictionary, Howard v. Pickford Tool Co. Ltd. (1951) 1 K B 417 ; White & Carter (Councils) Ltd. v. McGregor (1961) 3 All E R 1178 ; Harbutt s Plasticine Ltd. v. Wayne Tank and Pump Co. Ltd. (1970) 1 All E R 225 and Nutton v. Wilson (1889) 22 Q B 748 ref.

S. M. Zafar, Senior Advocate Supreme Court, Mian Younas Shah, Senior Advocate Supreme Court, M. Bilal, Advocate Supreme Court and Ch. 4khtar Ali Advocate‑on, Record for Appellant (in C. A. No. 19 of 1986) and for Respondent (in C. A. No. 41 of 1986).

M. Zahroorul Haq, Senior Advocate Supreme Court and J. D. Akbarji, Advocate‑on‑Record (absent) for Appellant (in C. A. No. 41 of 1986 and for Respondent (in C. A. No. 19 of 1986).

Respondents Nos. 2 to 6 : Ex parte.

Date of hearing : 28th May, 1986.

JUDGEMENT

SHAFIUR RAHMAN, J.‑‑.

The two appeals, both as of right under sec tion 67(3) of the Representation of the Peoples Act, 1976 (hereinafter referred to as the Act), have been filed challenging the judgment of the Election Tribunal, dated 29th of January, 1986 whereby the election of Muhammad Khan (appellant in Civil Appeal No. 19 of 1986) was declared to be null and void on the ground that on the material date he suffered from legal disqualification to be elected as a Member of the N.‑W. F. P. Provincial Assembly from Constituency No. PF‑79 Malakand Protected Area‑1 and it was further ordered by the Election Tribunal that fresh elections shall be held in the aforesaid Constituency for electing a Member of the Provincial Assembly.

From Provincial Assembly Constituency No. PF‑79 Malakand Protected Area‑1 seven candidates, all parties to these appeals, contested elections. At the end of the polls held on 28th of February, IS85, it was found that total number of valid votes cast was 23674 and the various candidates received the valid votes in the following order --

S. No.	Name of the contesting candidates	Number of valid votes
		polled
1.	Muhammad Khan	11414
2.	Abdul Khaliq Khan	4182
3.	Muhammad Nawaz Khan	2785
4.	Mehtab Shirin	2392
5.	Tawas Khan	1681
6.	Haroon‑ur‑Rashid	901
7.	Ajab Khan	319
8.
9.
10.
	Total	23674

In consequence the appellant Muhammad Khan was notified by the Election Commission as the returned candidate.

The other appellant viz. Syed Abdul Khaliq, having received the next highest votes filed an election petition under section 52 of the Act Contend ing that the returned candidate was "a Government contractor and is still having a subsisting contract with the Irrigation Department of the N.‑W. F. P. and as such was disqualified from being elected as a Member of the Provincial Assembly." Specific mention was mad: of a contract known as "Construction of Total Flow Irrigation Scheme to Kot area (Malakand Agency) Construction of Weir and‑left side channel RD‑3000". It was also mentioned that "he was having other subsisting contract at the time of filing and scrutiny of the nomination papers with Public Works Department of N.‑W. F. P." On these facts it was claimed that he suffered from a disqualification under the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 (hereinafter referred to as the Order) Article 10(8). The appellant Muhammad Khan contested this petition and took up a plea that the contract referred to was given to him on 1‑10‑1984 and the period for its performance was two months within which it was com pleted and that there was no other contract of the Government with him. It was also mentioned that he had made an application to the Executive Engineer on 2‑1‑1985 that as he was intending to take part in the Provincial Assembly elections, his name be removed from the list of approved Govern ment Cont4actors and this application was accepted by the Chairman Enlistment Committee of Contractors, N.‑W. F. P. on the same date and Executive Engineer N ‑W. F. P. was informed about it with reference to his letter, dated 27‑1‑1985 and so were the Superintending Engineers in the Public Health Engineering Department, N.‑W. F. P.

The solitary issue framed in the case by the Election Tribunal was as follows :‑

"(1) Whether the respondent No. 1 had a subsisting contract with the Government (Irrigation Division, Malakand) on the day he submitted his nomination paper for election to the Provincial seat No. PF‑79 of the Provincial Assembly of N.‑W. F. P. If so, what is its effect )"

After considering evidence produced at the trial, the Election Tribunal resolved the question of fact and law as hereunder ‑

"In view of the evidence referred to above it is clear that respondent No. 1 entered into an agreement with the Irrigation Department on 16‑10‑1984 wherein it was stipulated that the work was to be completed within 2 months. There is no material on the record to show that the contractor did not complete the work within the fixed period. No extension of time was asked for by the contractor nor any penalty was imposed on him for not completing the work within the fixed period. However, it appears that the measurement was taken by the official concerned on 27‑3‑1985 and in the Measure ment Book the date of the completion of work is also mentioned as 27‑3‑1985. According to the contractor since Ayub Jan S. D. O. is related to the petitioner, the aforesaid date was fraudulently mentioned in the Measurement Book.

Even if it is considered that the work stood completed on 16‑12‑1984 the fact remains that the measurement was taken on 27‑3‑1985 and the final bill was paid to the attorney of respondent No. 1 on 23‑5‑1985. According to the learned counsel for the petitioner since the interest of respondent No. 1 in the contract continued upto the payment of the final bill, he certainly had a subsisting contract with the Government and thus disqualified to take part in the election'. Reference is made to section 10(2)(6) (8) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 which provides that a person shall be disqualified from being elected or chosen as, and‑ from being, a member, of Parliament if he has any share or interest' in a contract, not being a contract between a Cooperative Society and Government, for the supply of goods to, or for the execution of any contract or performance of any services undertaken by Government."

On this finding the Tribunal passed the following operative order ‑

"In these circumstances it is held that respondent No. 1 was not entitled to stand as a candidate in Vie election. His election to Provincial Assembly from Constituency PF‑79 Malakand Protected Area I is, therefore, declared to be null and void with the result that the Election Authorities will now hold a fresh election in the said Constituency for electing a member of the Provincial Assembly. No order as to costs."

The grievance of the appellant Muhammad Khan is that in view of his own application and its acceptance and the completion of the work contracted for within the stipulated period of two months he suffered from no disqualification under Article 10(2)(6)(8) of the Order and the determination of the Tribunal otherwise is not in accordance with the law. The other appellant, Syed Abdul Khaliq, is aggrieved by this judgment in so far as after declaring the election of the other appellant to be void fresh elections have been ordered instead of declaring him to be the duly elected candidate. It is contended that after declaring the election of the returned candidate void under section 68, the Tribunal should have proceeded under section 69 of the Act to declare him to have been duly elected from that constituency instead of declaring fresh elections which is the consequence of election as whole being held to be void under section 70 of the Act.

Mr. S. M. Zafar, the learned counsel for the appellant has taken us through the entire history of the election laws on the sub‑continent, and incidentally also in the United Kingdom, and the changes brought about from time to time in the light of the decisions given by the Courts in order to establish that the existence of the contract such as tray disqualify a candidate from being elected is not to be adjudged on the strict principles of the Law of Contract but by reference to the language, the purpose and the object of the Election Laws as such. The reference, to the Contract Law can only be a guide for understanding of the broad principles applic able to the legal questions arising but not with a view to determine the disqualification etc. The learned counsel thereafter read out the two decisions which alone form the basis of the decision of the Election Tribunal, namely, the one given in Satyendra Kumar Dos and another v. Chairman of the Municipal Commissioners of Dacca and others (A I R 1984 S C 988) and approved in C. V. Jasani v. Moreshivar Parashram and others (A I R 1954 S C 236). He has traced the view taken by the Election Tribunals and the Indian Supreme Court in its various decisions subsequently i. e. Union of India v. Messrs Chaman Lal Loona & Co. (A I R 1957 S C 652), Laliteshwar Prasad Sahi v. Tateshwar Prasad and others (A I R 1966 S C 580), Abdul Rahiman Khan v. Sadasiva Tripdthi (A I R 1969 S C 302) and finally Smt. Aslhing v. L. S. John (A I R 1984 S C 988). The changes in law that were effected in the Indian jurisdiction were also brought to our notice in order to make the understanding of these decisions possible, relevant and useful for our purposes. The learned counsel also pointed out to the change in language in Article 10(2)(6 (8) of the Order which is identical with what was contained in the Legal Framework Order of 1970 and is materially different from the language used earlier and this change in language, it is contended, was deliberate and purposive and was to further restrict the disqualification to those cases where the candidate had an interest or a share in the execution of a contract as such and not merely in a contract for other purposes like settlement of account, determination of liabilities for breach of performance or, on its unilateral repudiation. According to the learned counsel, such a narrow and restricted view of the disqualification clause is quite in accord with the law laid down by this Court in the case of Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others (P L D 1973 S C 160).

Mr. Zahoorul Haq, the learned counsel for the other appellant contended that the cross‑examination of the witnesses produced before the Tribunal and the facts brought out all showed that the contract between the appellant Muhammad Khan and the Government was subsisting and the law laid down in the cases of Satvendar Kumar Das and C. V. Jasani is the correct law. Even according to the principles of the Contract Act after a contract has come into existence it cannot be put to an end by unilateral repudiation of it. The other contracting party has to consent and approve of such a repudiation before the contract can come: to an end. Besides, in the present case, according to the learned counsel, there was no repudiation at all. The contract, according to the evidence produced was performed and completed on 27th of March, 1985 and the payment was received in final settlement of the claims arising under the contract in May. 1985 when the scrutiny of the nomination papers took place on 23rd and 24th of January, 1985 and the polls on 28‑2‑11985. There was a sub sisting contract on these material dates and the application for removal of the name from the list of approved contractors did not at all affect the contracts which had already been entered into by him with the Government.

So far as the factual aspect of the case is concerned, it is clear that on 2nd of January. 1985, the appellant Muhammad Khan had made it clear to the contracting party and the Government that he was not interested in remaining an approved contractor of the Government in view of his intention to participate in the Provincial Assembly elections. This fact could govern his status as an approved contractor borne on the list of contractors N.‑W. F. P. Government as from 2‑1‑1985. The contention of the learned counsel for the other appellant is correct that this will not affect the subsisting contracts, if any had already been entered into. It was not an application addressed to the contracting party to be relieved of the contract. It was not an order given by the contracting party relieving him of the obligations under the contract. Such a requirement and the order passed served the future matters and not the past and completed transac tions, that is, contracts already finalized.

As regards the contract which the returned candidate had obtained from the Irrigation Department, his case was that time was the essence of the contract so far as he was concerned, it was to be completed within two months from the date of the work order and that both in fact as well as in terms of the contract clause the work was completed within sixty days and only its measurements and the payment of the bill was delayed by the department. His own duties under the contract were over. He did not at any stage seek extension of time. No extension of time was granted by the other contracting party. No penalty was imposed for delaying the work. The Executive Engineer made a categorical statement that he was not in a position to rebut that the work was completed within the stipulated time. The delay in measurements or payment of the bills or refund of the security is not a factor to be taken into consideration at ail while determining the effect of the disqualification clause, the interest or share of the contracting party in the execution of the work and the performance of the contract. The contract executed by the parties and the tendered document shows that time allowed for the work was two months from the date of the work order. Clause 2 of the contract provided as follows :‑

"The time allowed for carrying out the work as entered in the tender shall be strictly observed by the contractor and shall be reckoned .from the date on which the order to commence work is given to the contractor. The work shall throughout the stipulated period of the contract be proceeded with all due diligence (time being deemed to be the essence of the contract on the part of the contractor) and the contractor shall pay as compensation an amount equal to one per cent on such smaller amount as the Superintending Engineer (whose decision in writing shall be final) may decide, on the amount of the estimated cost of the whole work as shown by the tender for every day that the work remains un-commenced or unfinished, after the proper dates."

Clause (2‑A) contained the following conditions :‑

"In the event of the contractor refusing to carry out the work or leaving incomplete, at any time or stage after the commencement of the work, the contractor shall pay as compensation an amount equal to ten per cent, or such smaller amount as the Superintending Engineer (whose decision in writing shall be final) may decide, on the amount of the estimated cost of the whole work as shown in the tender rind the Divisional Officer may, by notice in writing rescind the contract in which case the whole of the security deposit of the contractor (whether paid in one sum or deducted by instalments) shall stand forfeited and be absolutely at the disposal of Government and the same consequences shall ensue as if the contract has been rescind under clause 3 hereof,"

Clause 8 reads as follows :‑

"A bill shall be submitted by the contractor each month on or before the date fixed by the Engineer‑in‑charge for all work executed in the previous month and the Engineer‑in‑charge, shall take or cause to be taken the requisite measurement for the purpose of having the same verified and the, claim, as far as admissible adjusted, if possible before the expiry of ten days from the presentation of the bill: If the contractor does not submit the bill within the time fixed as afore3aid, the Engineer‑in‑charge may depute a subordinate to measure up the said work in the presence of the contractor whose countersignature to the measurement list will be sufficient, warrant and the Engineer‑in‑charge may prepare a bill from such list which shall be binding on the contractor in all respects."

Finally, the conditions as in clauses (17) and (17‑A) are set hereunder.

"If the contractor or his work people or servants shall break, deface, injure, or destroy any part of a building, in which they may be working or any building, road, fence, enclsoure, or grass land, or cultivated ground contiguous to the premises, on which the work or any part of it is being executed or if any damage shall happen to the work while to progress from any cause whatever or any imperfec tions become apparent in it within three months after a certificate, final or other, of its completion shall have been given by the Engineer‑in‑charge as aforesaid, the contractor shall make the same good at his own expense or in default the Engineer‑in‑charge may cause the same to be made good by other workmen, and deduct the expense of which the certificate of the Engineer‑in‑charge shall be final froth any sums that may be then, or at any time thereafter may become due to the contractor, or from his security deposit or the proceeds of sale thereof or of a sufficient portion thereof.

17‑A. The security deposit or the balance of the security deposit, due to the contractor will not be refunded to him until three months after the work shall have been certified as completed by the Engineer- in‑charge and until the contractor shall have discharged all the liabilities to which he bas become liable under the contract or in default until the Engineer‑in‑charge has discharged these liabilities at the contractor's expense and until the contractor has furnished a No Demand; Demand Certificate on P. W. D. Form No. 14‑A."

In view of these clauses of the contract, it was contended by the returned candidate that consequences of repudiation or refusal to perform the contract were provided for and by such repudiation the contract had come to an end. It could not be specifically got enforced by a decree or by an injunction and the department was to proceed in accordance with the alternatives set out in the contract document. It is in view of these clauses of the contract and the evidence on record, that the Tribunal accepted on the factual side the contention of this appellant that contract was fully performed within the stipulated time so far as the contractor's obligations were concerned. The work was done within the time schedule but the Tribunal has proceeded to hold that as the measurements were taken in March, 1985 and the payment was made in final settlement of the bills in May, 1985 the appellant contractor had a subsisting interest in the contract. The Tribunal has followed unquestioningly the law laid down in the cases of Satyendar Kumar Das and C. V. Jasani. The latter decision and the reasoning behind them and the change in the language of the law not having been brought to its attention, it appears.

As the decision under appeal follows the law laid down in the two Indian decisions referred to above, it is necessary to first notice the law under which those decisions were given and the latest position with regard to those provisions and the amendments thereof. In the Calcutta case, a candidate in a municipal election was disqualified if he had "any share or interest in any contract of any kind whatsoever with the local body concerned". As a fact in that case it was held that the plaintiff, a candidate, had an interest in a firm which had contracted to supply the goods, had in fact supplied those goods, received a substantial part of its price and only a portion of the price remained to be paid. Notice was taken of a number of English decisions but an Irish case, namely, O'Carrol v. Hastings ((1905) 2 Ir. R 590) was preferred, the Court observing as follows :‑

"We have come to the conclusion that the right view of the law is as laid down in the Irish case which is no less of an authority in this matter than any English case would be or would not be. It is not a decision which we are bound to follow ; but on the other hand we take the view, as we do, that the arguments, reasonings and the ratio decidendi in the case ought to be followed and we think that we should accept it as a guide to the right view of the law having regard to the facts and that the decision in the case was based on the judgments of very eminent Judges including the Lord Chief Justice and was given after all the Judges had not only considered the matter carefully. and given one set of judgments but after they had been referred to further authorities and given reconsidered judgments in the matter and after they had considered several authorities on which the appellants have relied in the present case."

The Court held as follows :‑

"It is obvious that although the contractors had received these bills, it is not beyond the bounds of possibility that some matter in connection with these bills could come before the council of which the two plaintiffs were already members. We think that in these circumstances it cannot be said that the plaintiffs had no interest as they undoubtedly had at the time of making the contract, at the time of carrying out the contract and they also had an interest in it at the time when the bills were finally passed."

In the first Supreme Court case of C. V. Jasani the contract was for supply of goods. The accounts remained to be settled. The decision on thy point under consideration was given in terms that follow :‑

"But we have no doubt that they were contracts for the supply of goods. The question then is does a contract for the 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."

When Jasani's case came up for decision before the Supreme Court the disqualification law sought to be interpreted and applied was as follows‑‑

"7. A person shall be disqualified for being chosen as, and for being a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State‑

(d) if, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account, he has any share of interest in a contract for the supply of goods to, or for the execution of any works or the performance of any services undertaken by the appropriate Government."

This provision was amended to read as hereunder ‑‑

"7. A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State‑

(d) if there subsists a contract entered into in the course of his trade or business by him with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government".

In the case of L. P. Sahi, the law laid down after this amendment was as follows : ‑

"In our opinion, the Legislature has made no change in this respect for under the old provision it was also necessary for a contract to have subsisted at the relevant time. This Court bad in Chatturbhuj's case 1954 S C R 817 : A I R 1954 S C 236, included both executed and executory contracts within the provision of sec tion 7(d) and had refused to follow the English rulings to the contrary. We cannot go into the question whether this was rightly done or not for we are bound, by that decision. Accordingly, following Chatturbhuj's case 1954 S C R 817 : A I R 1954 S C 236, we hold that a contract for the supply of goods or for the execution of any works or the performance of any services under taken does not cease to subsist only because the goods had been supplied or work had been executed or services performed. It continues to subsist till payment is made and the contract is fully discharged by performance on both sides".

The same year, i. e. in 1965 an amendment and re‑arrangement of the provision took place in the Indian law and the same provision was brought in as section 9‑A in the following words :‑

"9‑A. 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 execution of any 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".

The objects and reasons given for this provision are as follows :‑

"In the new section 9‑A, an Explanation has been added to make it clear that a contract with the Government 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. This change has peen necessary in order to do away with the disqualifica tion that attaches to a person for being chosen as or for being a member of Parliament or State Legislature even after he has fully performed his part of the contract, since it would hardly be justifi able to retain such a disqualification provision in a Modern Welfare State when State activities extend almost over every domain of the citizen's affairs where many persons, in one way or the other, have contractual relationship with the Government. That being the case, an unduly strict view about Government contract in the present day might lead to the disqualification of a large number of citizens many of whom may prove to be able and capable members of Parliament or State Legislature. It would be of interest to note in this connec tion that in the United Kingdom, any disqualification arising out of any contract with the Crown has been done away with by the House of Commons Disqualifications Act, 1957."

In the case of S. Munishamappa v. B. Venkatarayappa and others (A I R 1981 S C 1177), a candidate having obtained a contract from the Government was asked to defer the execution of the work which he refused to do. An arrangement was reached between the Contractor and the State Government under which the State Government was to get the remaining work done by other contractors to between the filing of nomination paper and the polls. It was held that the contract had come to an end on .the nomination day and also in the alternative it was held as follows :‑

"In any event, if the contract had not been terminated by the parties themselves, it appears that the appellant must be held to be in clear breach of the agreement long before the date he had filed his nomination paper. Execution of the work in terms of the contract was undoubtedly one of the fundamental terms of the contract and the appellant had failed or refused to do so. Even if it be held that the appellant had committed a breach of the contract, the contract cannot be said to be subsisting thereafter. If the contract is discharged by breach on the part of the appellant, the entire contract necessarily goes and alongwith this the agreement, if there be any, with regard to the maintenance must necessarily go, leaving the party aggrieved to take steps to recover damages for such breach. The contract, however, cannot be said to be sub sisting."

In the case of Aslhing the last date for filing of nomination paper was 10th of December, 1979 and there existed a contract in favour of the appellant. Before the date of nomination a letter was written by the appellant closing the contract. The argument that the contract could not be unilaterally' put to an end for the purposes of disqualification law was answered by the Court in the following words ‑

"In our opinion having regard to the contents of the letter it is not possible to accept the agreement of Mr. Rangarajan that the contract was subsisting. The acceptance of the letter by the authorities was unnecessary for putting an end to the contract although the breach may give rise to a cause of action for damages."

So far as the disqualification laws for election to elective body in this country are concerned, they can be divided into two separate groups according to the language used in them. The first group comprises Representation of the People Act, 1957. The next is the Electoral College Act, 1964 and the third is the Representation of the Peoples Act, 1976. The second group consists of Legal Framework Order of 1970 and the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977. These provisions are re‑produced as hereunder :‑

1. The Representation of the People Act, 1957:

"99. Disqualification.‑(1) A person shall be disqualified from being elected as and from being a member of an Assembly, if ‑‑

(a) . . . . . . . . .

(b) . . . . . . . . .

(c) . . . . . . . . .

(d) . . . . . . . . .

(e) . . . . . . . . .

(f) . . . . . . . . .

(g) . . . . . . . . .

(h) having whether by himself or by any person in trust for him or for his benefit or on his account any share or interest in a contract for ‑

(i) the supply of goods to, or

(ii) the execution of any work, or '

(iii) the performance of any service, undertaken by the Government or a local authority or an autonomous body in which the Government has a controlling share or interest, he does not, after his election as a member but before making oath, as such, make a declaration in writing to the Commissioner that he has such share or interest, unless a period of five years has elapsed since his failure to do so".

The Electoral College Act, 1964:

"53. Disqualification etc.‑(1) A person shall be disqualified from being, or being elected as, a member of the Electoral College for any electoral unit if‑

(a) . . . . . . . . .

(b) . . . . . . . . .

(c) . . . . . . . . .

(d) . . . . . . . . .

(e) . . . . . . . . .

(f) he is a party to a contract for work to be done for, or goods to be supplied to, a Union Council or a Town or Union Committee within whose jurisdiction such electoral unit is situated, or has otherwise any pecuniary interest in such Council or Committee".

The Representation of the Peoples Act, 1976:

"116.‑(1) Subject to the other provisions of this section, p. person shall be disqualified for being elected or being a member of the National Assembly or a Provincial Assembly if, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account, he has any share or interest in a contract for supply of goods to, or performance of any services undertaken by the Government".

(Provisos are not of importance in this case)

2. Legal Framework Order, 1970:

9. Qualification and disqualifications for being a member.‑(1) A person shall, subject to the provisions of clause (2), be qualified to be elected as, and to be, a member if‑

(a) . . . . . . . . .

(b) . . . . . . . . .

(c) . . . . . . . . .

(d) . . . . . . . . .

(e) . . . . . . . . .

(f) . . . . . . . . .

(g) . . . . . . . . .

(h) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not ; being a contract between a co‑operative society and Government, for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by Government."

(Provisos are not of relevance in this case).

The Houses of Parliament and Provincial Assemblies (Elections) Order, 1977.

"Section 10. Qualification and disqualification for membership of Par liament.

(2) A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament:

(a) . . . . . . . .

(b) If‑

(1) . . . . . . . . .

(2) . . . . . . . . .

(3) . . . . . . . . .

(4) . . . . . . . . .

(5) . . . . . . . . .

(6) . . . . . . . . .

(7) . . . . . . . . .

(8) (if) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co‑operative society and Government for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by Government."

(Provisos are not of importance in this case).

The first change that occurred in the language of the disqualification clause 'in the Legal Framework Order was taken note of and commented by the Lahore High Court in the case of Haji Muhammad Siddiq v. Babu Karam Bakhsh and 3 others (P L D 1971 Lah. 912) in the following words :‑

"The analogous law was contained in Pakistan in section 116 of the Representation of the People Act XXXI of 1957. In India the corresponding jaw as contained in section 7(d) of the Representation of the People' Act XLIII of 1951, which presented some practical difficulties and was later on amended from time to time. See "Objects and Reasons" at page 1028 of the A I R. Manual of the Un-repealed Central Acts (Civil and Criminal) (2nd Edition), Volume 13. In England, the corresponding provision is the House of Commons Disqualification Act', ' 1872 as subsequently amended from time to time. With reference to, all this material, it was suggested to by the various learned counsel appearing in this case that the words "any contract" as underlined above were mistakenly used twice and that probably the real intention was to use the words "any works" as was the case in the analogous law hereinbefore referred to. We need not enter into the controversy in the face of the order which we are going to pass in this case."

The change in the language of the disqualification clause introduced in Legal Framework Order, 1970, appeared in Haji Muhammad Siddique's case to be a mistaken use of the words. It could as well be taken, or explained away as an inartistic clumsy or repetitive use of the word contract due to the "slovenliness" of the draftsman, or due to the want of his care and lack of perfection. But then the revival of the same expression in the same context in the Order points to a clear purpose and object. The relevant words, after excluding those not relevant to the question under consideration, read as hereunder ‑

"If he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account has any share or interest in a contract for the execution of any, contract undertaken by Government".

The word execution has been used with the word contract, and the word contract has been used twice in a manner in which "nobody else uses". The word execution has been defined (Black's Law Dictionary) as "carrying out some act or course of conduct to its completion", "completion of an act". The strict rule of law of contract law requires at least two parties to bring into existence a contract". Since its termination is the converse of its creation, principle demands that it should not be recognised unless this is what both parties intend". It has been held in Howard v. Pickford Tool Co. Ltd. ((1951) 1 K B 417) that "an unaccepted repudiation is a thing writ in water and of no value to anybody: It confers no legal rights of any soft or kind". The law recognizes discharges of a contract in various manner, by performance of the obligation by all the parties to the contract, by a result stipulated in the contract itself, by recission, by frustration or by a statute. In White & Carter (Councils) Ltd. McGregor ((1961) 3 All E R 1178) it was held that ‑

"If one party to a contract wrongfully repudiates it and the other party does not accept the repudiation, the contract survives and the rights of the innocent party are preserved ; accordingly he can perform his part of the contract and can recover on that footing, for there is no duty on him to vary the contract at the behest of the other party so as to deprive himself of its benefit."

(head-note)

The purity of the principles of law of contract was somewhat diluted in Harbutt's Plasticine Ltd. v. Wayne Tank and Pump Co. Ltd. ((1970) 1 All E R 225) by the following exposition of law on the subject :‑

"The defendants have always acknowledged the contract. All that has happened is that they have broken it. If they have broken it in a way that goes to the very root of it, then it is a fundamental breach. If they have broken it in lesser way, then the breach is not funda mental. In considering the consequences of fundamental breach, it is necessary to draw a distinction between a fundamental breach which still leaves the contract open to be performed and a funda mental breach which itself brings the contract to an end".

In view of this variance in strict principles of contract law and the election disqualification law the following observations were made in Mutton v. Wilson ((1889) 22 Q B 748) :

"To interpret words of this kind which have no very definite meaning, and which perhaps were purposely employed for that very reason, we must look at the object to be attained. The object obviously was to prevent conflict between interest and duty that might otherwise inevitably arise".

The strictness with which the disqualification laws have to be interp reted finds expression in Muhammad Yusuf Khan Khattak's case in the following words ‑

"It is well‑settled that the provisions of a penal statute, such as contained in clause 2(h) of the Legal Framework Order, 1970, entitling forfeiture and deprivation of valuable rights of property and franchise have to be very strictly construed and in the case of doubt the benefit must go to the person against whom they are sought to be invoked. The rule is founded on the tenderness of the law for the rights of the individual. As observed by Lord Usher M. R. in Tuck v. Priester (1) 19 Q B D 629 with reference to section 6 of the Copyright Act of 1962:

"We must be very careful in construing that section because it imposes a penalty. If there is a reasonable interpretation will avoid the penalty in any particular case, we must adopt that construction".

Unless penalties are imposed in clear terms, they are not enforceable.

Also, where various interpretations of a section are admissible, it is a strong reason against adopting particular interpretation if it shall appear that the result would be unreasonable or oppressive. The question squarely arises to the circumstances of this case".

In view of the words used a candidate must have interest or share in a contract and must also have interest or share in the execution of that contract. If the contract on his part has been performed or he has communicated a clear unequivocal intention to put an end to the contract then be will not be having an interest or share such as may disqualify him under the law. In the present case, the period of the completion of the work having already expired and there being no evidence that the work was not physically completed by date not disqualification was suffered by him on the nomination day. In view of this we accept his appeal (Civil Appeal No. 19 of 1986) and set aside the judgment of the Election Tribunal and dismiss the appeal of Syed Abdul Khaliq (Civil Appeal No. 41/86). The result will be that the election petition filed by Syed Abdul Khaliq shall stand dismissed. In the circumstances, no order is made as to costs.

M. B. A. Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.

🔍 Find a Lawyer