M A I N   N E W S

HC unseats Bhadana
By Yoginder Gupta
Tribune News Service

CHANDIGARH, Nov 10 — The ruling Indian National Lok Dal in Haryana received a shock today when Mr Justice A.S. Garg of the Punjab and Haryana High Court set aside the election of the Cooperation Minister, Mr Kartar Singh Bhadana, from the Samalkha Assembly constituency in Panipat district.

Mr Justice Garg not only unseated Mr Bhadana but also declared elected the Congress candidate, Mr Hari Singh Nalwa, who had filed an election petition against the INLD nominee. He also imposed Rs 10,000 as costs on Mr Bhadana.

With this the strength of the INLD has been reduced to 46, including the Speaker, in the House of 90 and the number of Congress MLAs has gone up to 22. However, the Chautala Government is sitting pretty as it enjoys the support of the six-member BJP group as well as 10 Independent MLAs.

Mr Nalwa had challenged the election of Mr Bhadana primarily on the ground that he was not qualified to contest the elections and his nomination papers were liable to be rejected as per the provisions of Section 9-A of the Representation of the People Act, 1951.

The petitioner contended that Mr Bhadana held five mining contracts with the Haryana Government and the contracts were subsisting at the time of filing the nomination papers. Hence, he was not qualified under Section 9-A to contest the elections, being a person driving benefits under contracts from the state. He also gave the details of the contracts.

In his reply Mr Bhadana said the petition was liable to be rejected because Mr Nalwa had not objected to his nomination when the nomination papers were scrutinised. He said he was not deriving any benefits from the government and the mining contracts did not constitute any disqualification because no goods were being supplied to the Haryana Government.

Mr Nalwa countered Mr Bhadana by saying that all mining operations vested in the government and were being performed by the Haryana Government itself. It was being done directly under the supervision of the government though contractors had been engaged.

Upholding the contention of Mr Nalwa, Mr Justice Garg said a reading of various clauses of the mining agreements together “clearly shows that the contractor is the agent of the government and is executing the contract on its behalf. In view of such terms and conditions of the contract, it will certainly fall within the ambit of Section 9-A. During the subsidy of such contracts, Mr Bhadana, in my view, was disqualified from contesting the elections.

Going into the rationale of disqualifications laid down in Article 191 of the Constitution and Section 9-A, Mr Justice Garg said the reason for debarring holders of office of profit was that such a person could not exercise his functions independently of the executive of which he was a part. Similarly a person holding a contract for supply of goods to the government or for executing any government work would be disqualified from contesting any election to the state legislature or Parliament.

Mr Justice Garg pointed out that “in the present case also, being a party to the contract the executive , i.e. the state government can exercise its influence on the member of the state legislature to prevent him from executing the contract according to its conditions. In a similar way a member can also exercise his influence on the executive to derive a pecuniary benefit out of contract. In my view a member cannot act independently if he holds a contract in which the executive is also a party and thus he is liable to be disqualified under Article 191 or under Section 9-A.

Further pointing out that under the Indian Contract Act, no contract was valid without a consideration, Mr Justice Garg said: “A member of the state legislature can exercise undue influence to affect the consideration or obligation to his advantage. Similarly, the executive can also under the threat of affecting the consideration to the disadvantage of the member can force him not to act independently. ”

He said in a mining lease a lessee “executes a contract to exploit the mineral deposits on behalf of the state government and in lieu thereof pays royalty to the state. Therefore, a mining contract or a mining lease is a contract to execute a government work on behalf of the government and is covered under Section 9-A. The member and the executive can exert their influence inter se.”

Mr Justice Garg in his 46-page judgement said a statute was an edict of the legislature and the conventional way of interpreting or construing a statute was to seek the intention of its maker. “Legislation in a modern state is actuated with a policy to curb some public evil or to effectuate some public benefit. When the purpose and object or the reason and spirit pervading through the statute is clear, the court has to adopt a purposive approach in interpreting such a statute.”

To support his observation the Judge cited an 1898 English case and quoted the Earl of Halsbury as saying: “It appears to me that to construe the statute in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provides the remedy. These three being compared, I cannot doubt the conclusion.”

Reverting to the election petition Mr Justice Garg said the respondent (Mr Bhadana) appeared to be virtually defenceless and “has become more vulnerable since he occupies vast territory of mines...Such a person whose head and ears are within the control of the state and who derives benefits from the state which could be stopped by the state government at any time, the legislation never thought him to be a proper person to contest the elections.”

Interestingly, an election petition challenging the election of the BJP parliamentarian from Faridabad, Mr Ram Chander Bainda, on similar grounds is also pending in the court.

Mr Bhadana, whose younger brother, Mr Avatar Singh, is the Congress MP from Meerut in U.P., was first elected to the Haryana Assembly from Samalkha on the Haryana Vikas Party ticket in 1996. In 1999, when the HVP split, Mr Bhadana headed the splinter group, the HVP(D), and joined the Chautala Cabinet as the Cooperation Minister. Later the HVP(D) merged into the INLD.