Abdul Rahiman Khan Vs. Sadasiva
Tripathi [1968] INSC 150 (15 July 1968)
15/07/1968 SHAH, J.C.
SHAH, J.C.
BHARGAVA, VISHISHTHA
CITATION: 1969 AIR 302 1969 SCR (1) 351
ACT:
Representation of the People Act (43 of
1951), s. 9AContract with Government-Not entered with Governor--If
disqualifies.
Constitution of India, Art, 229-Contract not
entered with Governor--Whether disqualifies under s. 9A Representation of the
People Act.
HEADNOTE:
The appellant's tenders to carry out certain
contracts with the State of Orissa were accepted but final contracts were not
executed on behalf of the Governor. The -appellant carried on a part of the
work and thereafter requested the authorities to cancel the contract without
any penalty. No acceptance of this offer was communicated to the appellant.
The appellant wrote letters to the
Superintending Engineer for extension of time and for permission to resume the,
work and finish it. Shortly thereafter the appellant filed his nomination paper
for a seat to the State Legislative Assembly, which was rejected. The appellant
filed an election petition for setting, aside the election of the respondent on
the ground that the appellants nomination paper was improperly rejected. The
High Court rejected the petition.
HELD : The appellant was rightly
disqualified.
(i) The contract was not wholly performed by
the appellant.
Unless he proved that he had completed the
contract or showed that there was determination by mutual assent of the
contract, the appellant could not claim that there was no subsisting contract
at the date of the filing of the nomination paper. The conduct of the appellant
in writing the two letters suggested that he did not treat the contract as
cancelled, nor there was any clear evidence to show that the authorities bad
treated the contract as cancelled. [356 C-E] (ii) The contract resulting from
the acceptance of his tender though not enforceable by suit against the State
Government, because it did not comply with Art. 299 of the Constitution must
still be regarded as disqualifying the appellant under the Representation of
People Act from standing as a candidate for election to the State Legislature.
[357 H] Chatturbhuji Vithaldas Jasani V. Moreshwar Parashram & Ors., [1954]
S.C.R. 817 and Lalitesliwar Prasad Sahi v. Bateshwar Prasad & Ors., [1966]
2 S.C.R. 63, followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1723 of 1967.
Appeal under section 116-A of the
Representation of the People Act, 1951 of the judgment and order dated October
14, 1967 of the Orissa High Court in Election Petition No. 1 of1967.
D. Goburdhun, for the appellant.
352 C. B. Agarwala, Uma Mehta, S. K. Bagga
and S. Bagga, for the respondent.
The Judgment of the Court was delivered by
Shah, J. At the last general elections, the respondent was declared elected to
the Legislative Assembly of Orissa from the Nowrangpur General Constituency.
The appellant filed an election petition before the High Court of Orissa for an
order setting aside the election of the respondent, on the, ground that the
appellant's nomination paper was improperly rejected and he was illegally
deprived of his right to contest the election. The High Court rejected the
petition.
The appellant has appealed to this Court
under s. 116-A of the Representation of the People Act, 1951.
It is common ground that the appellant was
carrying on the, business of a building contractor and that in pursuance of a
notification issued by the Government of Orissa he had submitted tenders for
construction of buildings of the Rental Housing Scheme at the rates specified
therein. Those tenders were accepted and the appellant had carried out a part
of the construction work, but had thereafter stopped the work because he
suffered serious injuries which necessitated his detention in a public
hospital. The appellant claimed that at his request the contract was cancelled,
and on that account at the date of the filing of his nomination there was,
between him and the State of Orissa no subsisting contract for execution of
works undertaken by him, and that in any event there was in law no contract
between him and the State relating to the execution of works which disqualified
him from standing at the election as a candidate for a seat in the State
Legislative Assembly.
In January 1965 tenders were invited by the
Government of Orissa for construction of buildings under the Rental Housing
Scheme. The tenders submitted by the appellant were accepted and on March 30,
1965, the appellant and the Executive Engineer signed an agreement in Form K-2.
The principal recitals in the agreements were :
"I do hereby tender to execute the under
mentioned description of work by piece work, and in accordance with the
conditions noted before in consideration of payment being made for the quantity
of work executed at rate specified in the following schedule." A schedule
of items was appended thereto which was followed by the recital :
"Conditions as per F-2 contract which
will be finalised." 353 The Executive Engineer then made an endorsement on
the tenders. "Accepted by me for item 5 only," and submitted them to
the Superintending Engineer for approval of "excess items".
Apparently sanction was given by the Superintending Engineer but no formal
contracts in Form F-2 were executed.
Advance payments were however made to the
appellant after execution of the agreements in Form K-2 and the appellant
proceeded with the work of construction. On October 13, 1965 the appellant
suffered serious injuries which necessitated his admission to a public Hospital
and the construction work was stopped. On January 6, 1966, the SubDivisional
Officer, P.W.D. Nowrangpur, addressed a letter to the appellant calling upon
him to resume work on or about the January 12, 1960, failing which, he was
informed, his contract will be terminated and "measurements will be
recorded". On February 10, 1966, the appellant addressed a letter to the
Executive Engineer, P.W.D. stating that it was not possible for him to resume
the work and to complete it, and he requested that the contract be cancelled without
imposition of penalty. On the letter of the appellant there are two
endorsements at the foot of the letter which have been marked Ext. 2 (a) and
Ext. 2 (b) : Exhibit 2 (a) reads:
"Submitted to the Executive Engineer,
Koraput Division. The reason for terminating the contract, as mentioned by Shri
A. R. Khan, contractor, is correct. His contract may be terminated without
imposing, penalty and permission given to fake up work through job work
soon." Exhibit 2(b) dated March 18, 1966, bears the initials of the
Executive Engineer, and states :
"I know of the unfortunate accident. As
the applicant is still in the Vizag Hospital his work may be finally measured
and closed without penalty. The balance of the work may be completed through
job work.
The Sub-Divisional Officer, Nowran Nagpur,
wrote a letter on March 16, 1955, requesting one Harihar Bisoi pursuant to his
application dated March 5, 1966, to take up the Rental Housing Schedule
building work at Nowrangpur "immediately ,it current schedule of rates
after taking detailed instructions from the Sectional Officer,
Nowrangpur." It appears that Harihar Bisoi did some construction work, but
no payment was made to him and he also stopped the work.
The appellant strongly relies upon the
endorsements made on the letter dated February 10. 1966, the letter Ext. 3, and
the evidence of Ram Mohan Patnaik-the Executive Engineer.
Ram Mohan Patnaik stated that he by his
endorsement Ext.
2(b) on 354 the application dated February
10, 1966, had clearly directed that the work of the contractor (appellant)
would be finally measured and his contract would be treated as closed and no
penalty would be charged from him; that the question of accounting had nothing
to do with the closing of the contract; and that on March 18, 1966, he had
passed an order Ext. 2(b) that the contract was closed. According to the
witness closure of the contract was not contingent upon the measurement of the
work done by the appellant, and that by his order dated March 18, 1966 Ext.
2(b) the appellant was excused from liability to complete the work, as the
contract was rescinded and by implication Ext. 2(b) meant that the
Sub-Divisional Officer would give intimation to the contractor about the
cancellation of his contract. The witness could not say whether the
Sub-Divisional Officer did give intimation to the contractor. He asserted that
it was not his intention that job work should be entrusted to job workers only
after the final bill of the appellant was submitted : his clear intention was
that after measurement was taken, the work may be entrusted to job workers.
According to the witness by Ext. 2(b) he
accepted the incomplete work of the appellant "as a complete satisfaction
of his contract." This evidence prima facie supports the case of the
appellant that it was the intention of the Executive Engineer to terminate the
contract. But there is a mass of evidence on the record which shows that no
steps were taken to intimate to the appellant about the determination of the
contracts and both the parties treated the contract as subsisting. To that
evidence we may advert. On April 15, 1966, the appellant wrote a letter in
reply to a letter dated April 13, 1966 from the Sub-Divisional Officer that he
"had completed upto slab level the construction of Rental Housing
Scheme" and that thereafter he was lying injured in a hospital and that as
he had no authorised agents to look after further work, early action may be
taken to make final measurement upto slab level and for payment of the amount
due to him. On December 20, 1966, the appellant wrote a letter to the
Superintending Engineer stating that he had recovered and was in a position to
leave the Hospital and to attend to his normal avocation and that he had learnt
that the Department wanted to cancel his contract and call for new tenders and
had taken some action towards that end. He requested the Superintending
Engineer to desist from such a course and to favorably consider his request for
extension of time to complete the work. He stated that he had advanced large
sums of money to the laborers and for the supply of materials, and there were
large quantities of building materials belonging to him which had been lying at
the site of the work and if his contracts "were to be cancelled he would
sustain irreparable loss"; that he had always been a very efficient 355
and good contractor and was executing the works in time and diligently and
well; and that he could not complete the work due to the unfortunate accident.
He then stated :
"I, therefore, request you to kindly
grant me time upto end of March 1967 and I shall resume the work by about 15th
January 1967 and will finish it by 31st March, 1967.
The cancellation of my contract at this stage
when nearly 75 % of the work was already done by me and the roofing alone
remains to be completed and the stoppage of the work was due to circumstances
over which I had no control due to more or less vis major will be most
inequitable if not unjust. 1, therefore, earnestly appeal to you to
sympathetically consider this representation of mine and grant me time till end
of March 1967 and order withdrawal or cancellation of the fresh tenders that
might have been called fo r by the Executive Engineer Koraput." At the
foot of the letter there is a notation that tenders had been called for the
balance of the work "as per instructions of the Executive Engineer,
Koraput, and that the contract may be rescinded as instructed by the Executive
Engineer, Koraput. There is another notation : "It is an old case wherein
Executive Engineer has already ordered to close the contract and do by job
(illegible) order its without penalty (illegible)". There is one more
notation dated January 4, 1967--'Submitted for favour of orders.
What penalty is to be imposed in rescinding
the contract." Exhibit 13 is a letter dated January 22, 1967, from the
Assistant Engineer, P.W.D. Nowrangpur to the Returning Officer which sets out
the circumstances in which the work entrusted to the appellant was stopped. The
letter states that "the balance work which was suggested to take up on
job-work basis would not affect the accounts of Sri A. R. Khan for his work
portion. The final bills for his above two works of the aforesaid contractor
have been submitted to Division Office vide this office letter Nos. 120 and 121
dated 18-1-67 and I have been intimated vide Divisional letter No. 902 dated
20-1-67 that the said contractor has to return 435 bags of cement and 7.954
quintals of rods to the undersigned to finalise his accounts. But no material
has been returned by the contractor yet and as such it ensures that his
accounts have not yet been finalised." Exhibit 14 is a letter dated
January 22, 1967 addressed to the appellant which also indicates that the
P.W.D. authorities had not treated the contract as cancelled and had not
intimated to him the order made by the Executive Engineer.
356 In February 1966 the appellant requested
cancellation of the contract. The Executive Engineer was willing to accept the
offer of cancellation and made an endorsement in that behalf, but nothing was
done thereafter. Harihar Bisoi was apparently asked to take up the work"at
the current schedule of rates", but even thereafter the contract with the
appellant was not treated as canceled.
It is true that by virtue of the Explanation
to s. 9A of the Representation of the People Act, 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. In the present case the contract was not
wholly performed by the appellant, and unless he had completed the contract or
showed that there was determination by mutual assent of the contract, the
appellant cannot claim that there was no subsisting contract at the date of the
filing of the nomination paper. By letter written by the appellant on July 22,
1966, Ext. C, the appellant made a request for extension of time by six months
to enable him to complete the work and by his letter Ext. D dated December 20,
1966 he requested the Superintending Engineer not to cancel the contract or
call for new tenders. This conduct of the appellant clearly suggests that he
did not treat the contract as cancelled, nor is there any clear evidence to
show "that the authorities had treated the contract as cancelled. The High
Court was, therefore, right in holding that the case did not fall within the
explanation to s. 9A of the Representation of the People Act and there was no
evidence of determination of the contract by mutual agreement.
Counsel for the appellant contended that the
contract for execution of works was between the State and the appellant and
Art. 299 of the Constitution applied thereto, and since the contract was not
shown to be executed in the name of the Governor, and by an authority competent
to execute the contract on behalf of the Governor, the disqualification under
s. 9A did not apply by cl. (1) of Art. 299 all contracts made in the exercise of
the execute power of the State must be expressed to be made by the Governor of
the State, and all such contracts made in the exercise of that power must be
executed on behalf of the Governor by such persons and in such manner as he may
direct or authorise.
It is true that agreements were executed by
the Executive Engineer in Form K-2 but no final contracts were executed in Form
F-2. The appellant proceeded on the footing that there was a binding contract
under which he had undertaken the work of construction for the State, and the
State had allowed him to work and had offered to pay him for the work done at
the 357 rates set out in Form K-2. The appellant could not by virtue of Art.
299 sue in a civil court on the agreement in Form K-2 for compensation for
breach of contract. But we are unable to hold that the appellant was not
disqualified under s. 9A of the Representation of the People Act merely because
the contracts were not enforceable against the State because of Art. 299 (1) of
the Constitution. In Chatturbhuj Vithaldas Jasani V. Moreshwar Parashram and
others(1), Bose J., in dealing with a case of disqualification under the
Representation of the People Act 1951, resulting from a contract with the State
which is not executed in the form and manner prescribed by Art. 299, observed:
"It may be that Government will not be
bound by the contract in that case, but that is a very different thing from
saying that the contracts as such are void and of no effect.
It only means that the principal cannot be sued;
but we take it there would be nothing to prevent ratification, especially if
that was for the benefit of Government. We accordingly hold that the contracts
in question here are not void simply because the Union Government could not
have been sued on them by reason of Article 299(1)." Undoubtedly for
breach of the terms of a contract not executed in the manner prescribed by Art.
299 (1) a suit for relief in a civil court will not lie, but on that account it
cannot be said That a contract for execution of works undertaken by a person
though not executed in manner prescribed by Art. 299, but which is treated by
both the parties thereto as binding will not operate as a disqualification. In
a recent judgment of this Court in Laliteshwar Prasad Sahi v. Batteshwar Prasad
and others(1), this Court held that where an agreement for execution of work
had been entered into between the State Government and a private person by
correspondence and the State Government has ratified the agreement and has
treated the relation between the parties as contractual and has accepted
liability arising under the terms of the agreement as if it were a pending
contract, a disqualification under the relevant provisions of the
Representation of the People Act results.
As already pointed out, the appellant had
commenced execution of the work but had not completed it. Payment for the work
done was not made to the appellant. The contract was not determined by mutual
agreement nor was it abandoned.
The contract resulting from the acceptance of
his tender though not enforceable by suit against the State Government, be(1)
[1954] S.C.R. 817.
(2) [1966] 2 S.C.R.63 358 cause it did not
comply with Art. 299, must still be regarded as disqualifying the appellant
under the Representation of the People Act from standing as a candidate for
election to the State Legislature.
The appeal therefore fails and is dismissed
with costs.
Y.P. Appeal dismissed.
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