Corr.Ent.Ltd & Ors. Vs. Election Commission of India & ANR.  INSC
209 (4 February 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 867 OF 2009 (Arising out
of SLP(C)No.16717/2008) Nandi Infrastructure Corr.Ent.Ltd. & Ors.
...Appellant(s) Versus Election Commission of India & Anr. ...Respondent(s)
Dr. ARIJIT PASAYAT,J.
Challenge in this
appeal is to the order dated 8/5/2008 issued by the office of the Chief
Electoral, Karnataka, purporting to act in terms of the directions of the
Election Commission of India (in short `the Commission') under Article 324 of
the Constitution of India, 1950 (in short the `Constitution'). The effect of
the order was that no action was to be taken on the decision of the State
Government partially modifying the Government decision dated 30/4/2008 and also
not to take any further policy decision and action on the BMIC project -2-
till 28/5/2008, that is the date on or before which the Election process is to
be completed. The Commission further directed the State Government to cancel
the Government decision. On the basis of this directive the Government of
Karnataka by Government order No. PWD 53 CRM 2007 Bangalore, dated 9.5.2008,
passed the following order:
THE GOVERNMENT OF KARNATAKA Sub:- Implementation of the Basngalore-Mysore
Infrastructure Corridor Project (BMICP) under BOOT concept Read:- 1. G.O.No.
PWD 53 CRM 2007 30.4.2008.
2Letter No. DPAR 4356
ELN MCC 2008 dated 8.05.2008 from the office of the Chief Electoral Officer,
GOVERNMENT ORDER NO.
PWD 53 CRM 2007 BANGALORE DATED 09.05.2008 Pursuant to the directions of the
Election Commission of India conveyed in the reference read at (2) above, the
Government Order dated 30.4.2008 at (1) above is hereby withdrawn with
By Order and in the
name of the President of India (M.Deviprasad) Under Secretary to Government
Public Works, Ports and IWT Department -By order dated 9.7.2008, this Court
stayed the direction relating to cancellation of the decision.
Commission of India has filed an affidavit dated 30/9/2008, inter alia, stating
"It is submitted
that the use of the word `cancel' in paragraph 2 of its Order dated 8/5/2008
has been misread by the petitioners as it was only intended to mean that the
implementation of decision of Government of Karnataka dated 30/4/2008 be
cancelled and suspended during the ongoing electoral process between the
8/5/208 (the date of passing the Order by Election Commission) and the
28/5/2008 (the date on which the election process was to get over."
It is surprising that
by jugglery of words the use of the expression `cancel' in paragraph 2 of the
order dated 8/5/2008 has been tried to be justified. If that was the intention,
the same should have been conveyed to the State Government after the order of
cancellation was passed. The expressions "cancel" and
"suspend" are conceptually different. At the same time there could
not have been cancellation and suspension. "Cancel" means to destroy
the force, effectiveness or validity of an order, a decision, to bring to
means to debar temporarily a privilege or make temporarily ineffective. To
"suspend" is to take a temporary measure while to "cancel"
has an element of permanency.
G.E.Vahanavati, appearing for the State of Karnataka stated that the
Government Order dated 9/5/2008 passed in line with the directives of the
Election Commission of India has been recalled and the Government desires to
implement the decision of the Karnataka High Court as upheld by this Court in
State of Karnataka & Anr. vs. All India Manufacturers Organization &
(2006) 4 SCC 683. In
view of this Statement nothing further survives to be done in this appeal. In
any event after 28/5/2008 the whole position has changed.
The appeal is
disposed of accordingly.
.J. (Dr. ARIJIT PASAYAT)
(ASOK KUMAR GANGULY)