REPORTABLE

  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)

J U D G M E N T

Dr. ARIJIT PASAYAT,J.

Leave granted.

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

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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:

“PROCEEDING OF 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,  Karnataka Bangalore.

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Order dated 30.4.2008 at (1) above is hereby withdrawn with immediate effect.

By Order and in the name of the President of India

(M.Deviprasad)

Under Secretary to Government

Public Works, Ports and IWT Department

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By  order  dated  9.7.2008,  this  Court  stayed  the  direction  relating  to

cancellation of the decision.  

The Election Commission of India has filed an affidavit dated 30/9/2008,

inter alia, stating as follows:  

“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  nothingness.

“Suspend”  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.

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Mr. 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  & Ors.

(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)

                  ...................J.                                         (V.S.SIRPURKAR)

    ....................J.                                         (ASOK KUMAR GANGULY) New Delhi, February 4, 2009.