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PETITIONER: ABDUL RAHIMAN KHAN

       Vs.

RESPONDENT: SADASIVA TRIPATHI

DATE OF JUDGMENT: 15/07/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. BHARGAVA, VISHISHTHA

CITATION:  1969 AIR  302            1969 SCR  (1) 351

ACT: Representation  of  the  People Act (43  of  1951),  s.  9A- Contract  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]

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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.

JUDGMENT: 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               undermentioned  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

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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 Sub- Divisional 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

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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

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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 top 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

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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  exe- cution  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

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candidate for election to the State Legislature. The appeal therefore fails and is dismissed with costs. Y.P.                                   Appeal dismissed. 359