Writ Petition No.2819 of 2009

29th July, 2009

Petitioner Counsel: Shri. S. P. DHARMADHIKARI,Shri. A. S. KILOR
Respondent Counsel: Shri. T. R. KANKALE,Shri. GOPAL MISHRA,Shri. P. C. MADKHOLKAR

Cases Cited:
Kum. Nirmala Tikana Giripo Vs. State of Maharashtra, 2009(1) ALL MR 91 [Para 9]
K. P. Sudhakaran Vs. State of Kerala, 2006 AIR SCW 2700 [Para 12]
Jyoti Basu Vs. Debi Ghosal, AIR 1982 SC 983 [Para 12]
Javed s/o. Sheikh Mustaque Patel Vs. State of Maharashtra, 2009(3) ALL MR 40 [Para 15]
Ramdas Bhikaji Darade Vs. Hon'ble Minister of State, 2009(3) Bom.C.R. 695 [Para 16]
Tarlochan Dev Sharma Vs. State of Punjab, (2001)6 SCC 260 [Para 17]
Keshav Shankar Ekbote Vs. State of Maharashtra, 2006(1) ALL MR 624=2006(1) Mh.L.J. 292 [Para 17]
Pyari Mohan Das Vs. Durga Sankar Das, AIR 1958 Orissa 125 [Para 18]
Srikant Vs. Vasantrao, 2006(3) ALL MR 200 (S.C.)=AIR 2006 SC 918 [Para 19,24]
Indumati Laxman Bhakare Vs. State of Maharashtra, 2004(4) ALL MR 89=2004 (Supp.2) Bom.C.R. 962 [Para 21,24]
Chaturbhuj Vithaldas Jasani Vs. Moreshwar Parashram, AIR 1954 SC 236 [Para 23,24]
Ramesh s/o. Gangadhar Korde Vs. State of Maharashtra, 2006(1) ALL MR 774 [Para 24]

JUDGMENT

JUDGMENT :- This petition is directed against the order passed on 1-7-2009 by respondent No.1 - The Divisional Commissioner, Nagpur Division, Nagpur, under Section 40 read with Section 16(1)(i) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, disqualifying the petitioner from holding the office of Councillor and consequently that of President, Zilla Parishad, Chandrapur.

2. Facts, which are material for deciding this petition, are as under :

The petitioner had been awarded contracts of asphalting of two roads by contracts dated 27-9-2005 and 17-3-2005 by Zilla Parishad, Chandrapur. The petitioner had completed the work, but his final bills remained to be paid as on 23-2-2007 for want of funds.

3. The petitioner filed nomination for being elected as Councillor from 36-Kelzar Chinchala constituency. One Subhash Bukkawar objected to petitioner's nomination on 26-2-2007 on the ground that the petitioner was a contractor of Zilla Parishad, Chandrapur, and had received remuneration and so was disqualified. The Election Officer rejected this objection and held petitioner's nomination to be valid. The petitioner was then elected as Councillor on 12-3-2007 and was elected President of the Zilla Parishad on 21-3-2007.

4. After the petitioner was elected as President on 21-3-2007, amounts of his outstanding bills were paid on 30-3-2007, 31-3-2007 and 12-6-2007.

5. On 5-4-2007, respondent No.3 applied under Section 40 of the Act before the Commissioner, respondent No.1, for petitioner's disqualification on the same ground. By an order dated 29-3-2008, respondent No.1 rejected this application. Respondent No.3 filed Writ Petition No.2016 of 2008 challenging the said order. This petition was dismissed by judgment dated 16-1-2009, giving liberty to respondent No.3 to file fresh application before respondent No.1, within a week, which was to be decided within 90 days. Accordingly, respondent No.3 filed fresh application before respondent No.1 on 19-1-2009. The petitioner raised a preliminary objection and filed Writ Petition No.2452 of 2009 for a direction to respondent No.1 to decide the objection. This petition was withdrawn on 15-6-2009.

6. Thereafter respondent No.1 passed impugned order on 1-7-2009, against which the present petition is filed. By the impugned order, respondent No.1 did not uphold the objection of the petitioner to the locus of respondent No.3 to file such an application seeking petitioner's disqualification. Respondent No.1 also held that though works under the contract were completed by the petitioner before election, he had received payment after being elected as Councillor, indicating his interest in the works undertaken for Zilla Parishad. Therefore, respondent No.1 held that the petitioner was disqualified.

7. Granting interim stay, by order dated 9-7-2009, this petition was directed to be heard finally at admission stage. Respondent No.3 has filed preliminary submissions opposing the petition.

8. I have heard the learned counsel for the parties. While the learned AGP for respondent No.1 supported the order, the learned counsel for respondent No.2-Zilla Parishad supports the petitioner.

9. The learned Senior Counsel for the petitioner assailed the impugned order on the ground that it does not at all give any reasons. He submitted that it is the basic rule of law and natural justice that the order has to be self-explanatory and should not keep the Courts guessing for reasons. For this purpose, the learned counsel placed reliance on a judgment of this Court in Kum. Nirmala Tikana Giripo Vs. State of Maharashtra and others, reported at 2009(1) ALL MR 91. There can be no doubt that an authority is required to pass an order, which makes reasons clear. However, what amount of articulation would be necessary would depend on the comprehension of the author as well as the reader. There can be no doubt that the impugned order could have been more elaborate, but definitely it cannot be said that the order lacks reasons. The Divisional Commissioner has specifically observed that the petitioner had received the amount for the works done after he was elected as Councillor and, therefore, had concluded that he had an interest in the works executed for the Zilla Parishad. The question as to whether the reasons are proper or adequate would now be considered.

10. Before considering the arguments advanced on that question, it may be useful to reproduce for ready reference relevant provisions of Sections 16, 27 and 40 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961.

"16. Disqualifications :- (1) Subject to the provisions of sub-section (2), a person shall be disqualified for being chosen as, and for being, a Councillor-

(a) ...

(b) ...

(c) ...

(d) ...

(e) ...

(f) ...

(g) ...

(h) if he holds any office of profit under a panchayat or Zilla Parishad or under or in the gift of the Government; or

(i) if he has directly or indirectly by himself or by his partner any share or interest in any work done by order of the Zilla Parishad or in any contract with, by or on behalf of the Zilla Parishad; or

(j) ...

(k) ...

(l) ...

(m)...

(n) ...

1-A. A person who at any time during the term of his office is disqualified under the Maharashtra Local Authority Member's Disqualification Act, 1986 for being a Councillor shall cease to hold office as such Councillor.

(2) Notwithstanding anything contained in sub-section (2),-

(a) ...

(aa) ...

(b) a person shall not be disqualified under clause (i) of that sub-section by reason only of such person -

(i) having share in any joint stock company or a share or interest in any co-operative society which may contract with or be employed by or on behalf of the Zilla Parishad; or

(ii) having a share or interest in any newspaper in which any advertisement relating to the affairs of the Zilla Parishad may be inserted; or

(iii) holding a debenture or being otherwise concerned in any loan raised by or on behalf of the Zilla Parishad; or

(iv) being professionally engaged on behalf of the Zilla Parishad as a legal practitioner; or

(v) having any share or interest in any lease for a period not exceeding fifty years of any immovable property or in any agreement for the same; and before such lease or agreement is executed, the Collector certifies that no other suitable premises were available to the Zilla Parishad on lease; or

(vi) having a share or interest in the occasional sale to the Zilla Parishad of any article in which he regularly trades, or in the purchase from the Zilla Parishad of any article, to a value in either case not exceeding in any financial year five hundred rupees; or

(vii) having a share or interest in the occasional letting out on hire to the Zilla Parishad or in the hiring from the Zilla Parishad of any article for an amount not exceeding in any financial year fifty rupees or such higher amount not exceeding five hundred rupees as the Zilla Parishad with the sanction of the State Government may fix in this behalf;

(c) a person shall not be disqualified under clause (i) or (j) of that sub-section by reason only of such person having a share or interest in any transaction of loan given, or grant made, by or on behalf of the Zilla Parishad (such share or interest being acquired, while he holds the office of a Councillor, in accordance with the rules prescribed by the State Government);

(d) ...

(e) ...

(3) ..."

"27. Determination of validity of elections; enquired by Judge; Procedure :- (1) If the validity of any election of Councillor or the legality of any order, made or proceedings held under section 26 is brought in question by any candidate at such election or by any person qualified to vote at the election to which such question refers such candidate or person may, at any time within fifteen days after the date of the declaration of the result of the election or the date of the order or proceeding, apply to the District Judge of the district within which the election has been held, for the determination of such question.

(2) ...

(3) ...

(4) ...

(5) ...

(6) ...

(7) ...

(8) ..."

40. Disqualification of Councillors during term of office :- (1) Subject to the provisions of sub-section (2) of section 62, if any Councillor during the term of the office-

(a) becomes disqualified under sub-section (1) or of section 16, or

(b) is, for a period of six consecutive months excluding in the case of presiding authority the period of leave duly sanctioned without the permission of the Zilla Parishad, absent from meetings thereof or is absent from such meeting for a period of twelve consecutive months the office of such Councillor, shall, notwithstanding anything contained in clause (c) of sub-section (1) of section 9 become vacant.

(2) If any question whether a vacancy has occurred under this section is raised either by the Commissioner suo motu or on an application made to him by any person in that behalf, the Commissioner shall decide the question as far as possible within ninety days from the date of receipt of such application; and his decision thereon shall be final. Until the Commissioner decides that the vacancy has occurred, the Councillor shall not be disabled from continuing to be a Councillor :

Provided that, no decision shall be given against any Councillor without giving him a reasonable opportunity of being heard."

11. The learned Senior Counsel for the petitioner submitted that respondent No.3 not being a voter or a candidate at the election at which the petitioner was elected, could not have questioned the election under Section 27 of the Act by filing an election petition. Therefore, he could not even have raised an objection to the petitioner's disqualifications to continue as a Councillor on account of situation which already existed at the time of such election. He submitted that the expression "any person" in sub-section (2) of Section 40 of the Act could not be interpreted to expand the locus to challenge an election, since this would render the restriction in Section 27 of the Act, namely that only a candidate or a voter could challenge election meaningless. The learned Senior Counsel fairly submitted that may be there is a justification for restricting locus to only voters or candidates as far as remedy under Section 27 of the Act is concerned, while permitting recourse to remedy under Section 40 of the Act to "any person", since probity of conduct after elections may be a matter of concern for every citizen.

12. According to the learned counsel for the petitioner, this question is a subject-matter of a separate petition, which, according to the learned counsel for respondent No.3, is yet to be admitted. Relying on judgment of the Supreme Court in K. P. Sudhakaran and another Vs. State of Kerala and others, reported at 2006 AIR SCW 2700, the learned counsel for respondent No.3, submitted that any alleged intention behind a provision cannot be used to defeat the express words of the provision. Quoting from para 8 of the judgment of the Supreme Court in Jyoti Basu and others Vs. Debi Ghosal and others, reported at AIR 1982 SC 983, the learned counsel for respondent No.3 submitted that answers to all questions in an election dispute must be sought within the four-corners of the statute. It may be useful reminder to quote the observations in para 8 as they are :

"8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say ?"

However, it cannot be disputed that the conduct inviting disqualification must have occurred "during the term of office" and conduct prior to entering the office would not do.

13. It may be useful to refer to observations in judgment in Writ Petition No.2016 of 2008 granting liberty to respondent No.3 to apply to respondent No.1 under Section 40 of the Act. The petition arose out of rejection of respondent No.3's application to declare the election of the petitioner null and void. The prayer in that petition was to declare the petitioner's election illegal. This Court held that such an application was not tenable and observed that respondent No.3 could have prayed to respondent No.1 under Section 40 of the Act for a declaration that the petitioner had incurred disqualification, after entering in office. Respondent No.3 accordingly filed fresh application in view of liberty granted. So, the question of respondent No.3's locus to apply under Section 40 of the Act does not really arise.

14. This leaves the only question, as to whether in the given circumstances namely first, that the petitioner had already completed works in question before 23-2-2007, and secondly, that his bills remained unpaid and those were paid on 30th, 31st March, 2007 and 12th June, 2007 after the petitioner entered office on 21-3-2007 - the petitioner incurred disqualification in terms of clause (i) of Section 16(1) of the Act. The learned counsel for respondent No.3 submitted that answer to this question is already recorded in para 9 of judgment in Writ Petition No.2016 of 2008, after considering judgments cited in the following words :

"9. ... All these authorities supports the contention of the petitioner in respect of the interest by way of contract even if the work is completed, whether payment is yet to be made by the Municipal Council or Zilla Parishad or by the concerned Government or Government body."

15. The learned Senior Counsel for the petitioner submitted that it may not be permissible to hold that the petitioner was disqualified on account of acts prior to petitioner's election and for this purpose relied on judgment of Division Bench of this Court (upon reference by a learned Single Judge) in Javed s/o. Sheikh Mustaque Patel Vs. State of Maharashtra and others, reported at 2009(3) ALL MR 40. In that case, the Bench was considering analogous provision of Sections 16 and 44 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, though the clause under consideration was Section 44(1)(e), which reads as under :

"Section 44(1) : A Councillor shall be disqualified to hold office as such, if at any time during his term of office, he

(a) ...

(b) ...

(c) ...

(d) ...

(e) has, constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act, or the Maharashtra Regional and Town Planning Act, 1966 or the rules or bye-laws framed under the said Acts; or has directly or indirectly been responsible for, or helped in his capacity as such Councillor in, carrying out such illegal or unauthorised construction or has by written communication or physically obstructed or tried to obstruct, any Competent Authority from discharging its official duty in demolishing any illegal or unauthorised structure :

and he shall be disabled subject to the provisions of sub-section (3) from continuing to be a Councillor and his office shall become vacant;

Explanation :- If any elected or nominated Councillor were subject to any disqualification specified in Section 16, at the time of his election, (or nomination) and continues to be so disqualified, the disqualification shall, for the purposes of this section, be deemed to have been incurred during the terms for which he is elected or nominated."

The Court held in para 27 as under :

"27. In view of the above, we have no hesitation to hold that in order to attract disqualification under Section 44(1) of the Act, illegal or unauthorised construction violating the provisions of the Act, or the Maharashtra Regional and Town Planning Act, 1966 or the rules or bye-laws framed under the said Acts, must have been carried out by the Councillor, either by himself, his spouse or his dependent during the term of his office and consequently any construction undertaken prior to his tenure cannot be a ground to disqualifying the councillor. We answer the reference accordingly."

16. Similar view is taken in Ramdas Bhikaji Darade Vs. Hon'ble Minister of State and others, reported at 2009(3) Bom.C.R. 695. The learned Senior Counsel submitted that on the same analogy, it must be held that in order to incur disqualification under Clause 16(1)(i) of the Act, the work must be done during the term of office and here the work was already completed before the petitioner was elected.

17. Relying on judgment of the Supreme Court in Tarlochan Dev Sharma Vs. State of Punjab and others, reported at (2001)6 SCC 260, the learned Senior Counsel submitted that removal of an elected office bearer is a serious matter and unless squarely warranted by the provisions of relevant law, this should not be permitted. Observations in para 7 in the said judgment may be usefully quoted as under :

"7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Therefore, a case of availability of a ground squarely falling within Section 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of Section 22, on the ground of "abuse of his powers" (of President), inter alia. This is the phrase with which we are concerned in the present case."

Similar view is taken in Keshav Shankar Ekbote Vs. State of Maharashtra and others, reported at 2006(1) Mh.L.J. 292 : [2006(1) ALL MR 624].

18. In Pyari Mohan Das Vs. Durga Sankar Das and another, reported at AIR 1958 Orissa 125, the candidate had taken contracts for sinking bore wells and work was completed on 7-7-1955. The Sub-Divisional Officer ordered final payments of balance due to the candidate and to get measurements done by 30-7-1956. The measurements were not completed and a balance was left to be paid on the date of nomination. The Court held that the contract did not subsist.

19. In Srikant Vs. Vasantrao and others, reported at AIR 2006 SC 918 : [2006(3) ALL MR 200 (S.C.)], on which the learned Senior Counsel for the petitioner relied, election of a Legislative Councillor was challenged on the ground that his construction contracts with the Government and its agency - Maharashtra Jeevan Pradhikaran (MJP) subsisted on the dates of nomination till declaration of results, i.e. in June, 2002. On behalf of the candidate, it was pointed out that the contracts stood transferred from Government agency to a Corporation - GMIDC. The High Court held that GMIDC or MJP were "State" and hence unseated the candidate. The Supreme Court held that though GMIDC or MJP may be "State" for the purpose of parts III or IV of the Constitution, they were not "State Government" to incur disqualification. However, the Apex Court also observed in para 23 as under :

"23. What is relevant under section 9-A of the Act is that the contractor should have some obligations to perform towards the State Government on the relevant date. In fact, the explanation to section 9-A makes it clear that where a contractor has performed all his obligations, but the government is yet to perform its obligations (for example, where the work assigned under a work order is completed by the contractor and that is duly certified, but payment therefore is not yet made by the Government) then there is no contract "subsisting" within the meaning of section 9-A of the Act."

20. The learned Senior Counsel for the petitioner submitted that the case of the petitioner is squarely covered by these observations.

21. The learned counsel for respondent No.3 contested this proposition. He stated that the question as to whether a contract came to end upon mere execution of works and whether the interest of the petitioner is such a contract subsisted, had been raised before this Court in Indumati Laxman Bhakare Vs. State of Maharashtra, reported at 2004 (Supp.2) Bom.C.R. 962 : [2004(4) ALL MR 89]. In that case, election of President of a Municipal Council was questioned on the ground that her husband had been awarded various contracts by the Municipal Council in respect of several civil works. He had completed certain civil works and some other works remained to be commenced. On 9-11-2001, the date on which the candidate filed her nomination, her husband wrote to the Municipal Council that he was not in a position to complete the work which had been awarded to her and that all the contracts were accordingly terminated. He had also stated that he would be responsible to the Municipal Council to reimburse any loss that may be incurred on account of the termination of the contracts. On the same day, the Chief Executive Officer of the Municipal Council stated that the contracts stood terminated. The District Judge dismissed the election petitions, however, after recording a finding that the elected candidate was not qualified in view of the provisions of Section No.16(1)(i) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act. All the parties had challenged the orders before the High Court.

22. In paras 11 and 12 of the judgment, this Court observed as under :

"11. The expression "any share or interest in any work done by order of a Council" must apply to a situation where a Municipal Contractor who has carried out work by order of a Council retains directly or indirectly an interest in receiving payment for work done. Such a person has a share or interest in any work done by order of a Council because he has a vital personal interest in the realisation of the outstanding dues in respect of the work which has been done. The fact that the contract does not subsist on the ground that it has been terminated will not protect him against the disqualification in the first part of Clause (i) so long as he continues to have an interest in ensuring receipt of payment for work which has been carried out during the subsistence of the contract."

"12. The facts of the present case are indeed eloquent. The spouse of the elected candidate was a Municipal Contractor to whom several contracts had been awarded for carrying out diverse items of work by order of the Council. On 9th November, 2001, he terminated the contracts recording that since his wife was filing her nomination for contesting the post of Municipal Councillor or of the President of the Council, he desired to terminate the contracts. Undoubtedly, upon such termination, those contracts came to an end. Thereafter, the spouse of the Contractor contested the election and was elected as President of the Municipal Council. The ink of the declaration of the election results had barely dried when on 25th January, 2002 a resolution was passed by the Municipal Council in terms already noted earlier, authorising the Municipal Council to defray the bills of the contractor in respect of work which he had already carried out. Fresh tenders were to be invited for work which remained and for good measure it was also stated that the event that the Municipal Council suffered any loss, it should be recovered from the Contractor. The resolution bears the signature of the elected candidate as the President of the Municipal Council. The situation which has arisen in the present case is exactly one which the legislature sought to obviate by enacting the provisions of Clause (i) of sub-section (1) of Section 16. The interest which the Municipal Contractor has in securing payment for work which had been carried out involves a clear conflict of interest and duty if the contractor himself or his spouse is elected as Municipal Councillor or President." (Emphasis supplied)

23. In para 14, this Court relied on judgment of the Supreme Court in Chaturbhuj Vithaldas Jasani Vs. Moreshwar Parashram and others, reported at AIR 1954 SC 236. The said para 14 reads as under :

"In (Chaturbhuj Vithaldas Jasani Vs. Moreshwar Parashram) AIR 1954 SC 236, the Supreme Court construed the provisions of section 7(d) of the Representation of the People Act, 1951 which at the material time provided that "A person shall be disqualified for being chosen as, and for being a member etc. ... (d) if ... by himself ... he has any share or interest in a contract for the supply of goods (to) ... the appropriate Government". Jasani was elected to the general seat in the Bhandara Parliamentary Constituency and his election was challenged on the ground that he was subject to the disqualification set out in section 7(d). The ground was that he was and continued to be a partner in a firm which at all material times had a contract to supply bidis to the Government for the troops. Mr. Justice Vivian Bose delivering the judgment of a Bench of three learned Judges of the Supreme Court held that even if it was assumed that the partnership firm had fully performed its part of the contract by placing the goods on rails before the last date for filing the nomination paper at the election, the contracts were not at an end until the vendors were paid and the contracts were fully discharged. The Supreme Court held that a contract for the supply of goods did not stand terminated when the goods were supplied and it continued in being till it was fully discharged by performance on both sides."

23-A. In Chaturbhuj Vithaldas Jasani Vs. Moreshwar Parashram, where the provisions of Section 7(d) of the Representation of People Act were under consideration, the contract was for supply of goods. The goods had been dispatched before the last date for putting in nomination which was 14-2-1952. Payments were, however, made even beyond that date up to 20-3-1952. In para 18 of the judgment, the three-Judge Bench of the Supreme Court raised the following questions:

"18. That raises these questions : (1) Does a person who has fully executed his part of a contract continue to have an interest in it till the goods are paid for ? And (2) were these contracts fully executed so far as Moolji Sicka and Company's part was concerned? The parties are not agreed about this, so it will be necessary to examine their letters in detail to determine the terms of the various contracts."

After considering the facts in paras 33 and 34, the Court observed as under :

"33. There can be no doubt that these various transactions were contracts and there can equally be no doubt that they were contracts for the supply of goods. Whether they were contracts for the supply of goods to the Government is a matter which we shall deal with presently. 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."

"34. It was contended, on the strength of certain observations in some, English cases, that the moment a contract is fully executed on one side and all that remains is to receive payment from the other then the contract terminates and a new relationship of debtor and creditor takes its place. With the utmost respect we are unable to agree. There is always a possibility of the liability being disputed before actual payment is made and the vendor may have to bring an action to establish his claim to payment. The existence of the debt depends on the contract and cannot be established without showing that payment was a term of the contract.

It is true the contractor might abandon the contract and sue on 'quantum meruit' but if the other side contested and relied on the terms of the contract, the decision would have to rest on that basis. In any case, as we are not bound by the 'dicta' and authority of those cases, even assuming they go that far, we prefer to hold that a contract continues in being till it is fully discharged by both sides : see the observations of Gibson J. on - 'O' Carroll Vs. Hastings', (1905)2 IR 590 at p.608 (B)."

24. The learned counsel for respondent No.3 submitted that in view of this decision of a three-Judge Bench of the Supreme Court, where the issue was squarely raised and answered, the observations of a two-Judge Bench, para 23 of the judgment in Srikant Vs. Vasantrao and others, reported at AIR 2006 SC 918 : [2006(3) ALL MR 200 (S.C.)], referred to above, would not be attracted. There can be no doubt that ratio of judgment in Chaturbhuj Vithaldas Jasani Vs. Moreshwar Parashram, reported at AIR 1954 SC 236, where the issue of subsistence of contract when only payments remained to be received by the contractor was squarely raised and decided would apply, rather than observations in para 23 in Srikant Vs. Vasantrao and others, which was in fact decided on a different ground, namely that agencies with which the Councillor's contracts subsisted were not State Government. Decision of Dr. D. Y. Chandrachud, J. in Indumati Laxman Bhakare Vs. State of Maharashtra and others, reported at 2004 (Supp.2) Bom.C.R. 962 : [2004(4) ALL MR 89], is on all fours and concludes the issue that payments received "during the term of office" in respect of works executed prior to election too would attract disqualification. In view of this, it may not be necessary to refer to judgment in Ramesh s/o. Gangadhar Korde Vs. State of Maharashtra and others, reported at 2006(1) ALL MR 774, which is on slightly different facts.

25. To sum up, it has to be held that the petitioner received sums under his contract with the Zilla Parishad "during the term of his office" within days of his election as President of Zilla Parishad, or, to borrow from judgment in Indumati's case, when the ink of the declaration of election results had barely dried ! Therefore, he was rightly held by respondent No.1 to have incurred disqualification. Consequently, the impugned order has to be upheld.

26. The petition is, therefore, dismissed with no order as to costs.

Petition dismissed.