KONAPPA RUDRAPPA NADGOUDA v. VISHWANATH REDDY & ANR. July 18/19, 1968 [M. HIDAYATULLAH, C.J., AND G. K. MITTER, JJ.] Representation of the People Act, 1951, s. 9A-Agreements between: respondent's [inn and State Gov.ernnient for building a road and a dis– pensary-work at first certified as co1npleted later certificates cancelled- 'Agreements containing claus.es
requiring contractor to repair faulty work-if contracts subsisting on date of nomination-Respondents' part- nership fir111 dissolved before no1ninatio11 without notice to Government- effect of .
The appellant and the first respondent were candidates for election in· February, 1967 from the Yadagiri constituency which was won by the first respondent. The appellant challenged his election by a petition on.
the ground that he was a partner in a firm which had two contracts with the State Government, one for the construction of a road and the other for the construction of a dispensary building, which were subsisting on the day when nominations were filed; he was therefore disqualified from being a candidate unde'.r s. 9A of the Representation of the People Act, 1951 and his election was void.
The appellant also claimed that he was entitled to be declared elected as the votes cast in favour of the first res- pondent must be regarded as thrown away. From the evidence led
before the High Court it was clear that the first respond~nt had obtained certificates from officers of the State Government to the ·effect that the cont'racts were complere but that these c~rtificates were subsequently can- celled as it was considered that the work \Vas not completed. After
appraising the evid·ence, the High Court came to the conclusion that although some of the items from the two contracts might not have been·· completed, the contracts as a whole were substantiaily performed and,
therefore, there was no bar to the candidature of the first 'respondent. It also held that although the agreements contained clauses for maintenance· and repairs over a period of time after the completion of the work of construction,
th·~se did not have the· effect of making them subsisting, contracts. The High Court thc'rcfore dismissed the election petition. HELD : On appeal to this Court, The High Court was in error in holding that the contracts had been· fully p·erformed and s. 9A did not apply.
The appeal must therefore be· allowed and the election of the first respondent declared void. Further- more the votes caste in favour of the first respondent must be treated as thrown away and in the absence of any other contesting candidate, the· appellant declared elected [ 403 F, 404 B-C]
(i) Taking the fact that some portion of the· original contracts re-· mained to be performed with the fact that under the contracts the con- tractor was required not only to complete the original wdrk but to repair· defects or re-do something which he had not properly done, the matter must be regarded as falling within s. 9A of the Act.
In the context of construction of buildings and roads, it is obvieus that if some part is· found defective and has to be done again, the contract of execution as such is still to be fully performed. It is posiible to describe the action taken as one to repair the defect, but in essence it is a part of the contract· SUPREME COVRT REPORTS
jl 969] I S.C.R. .of cx~cution, because nJ execution can be said to be proper or con1plcte lill it is properly cxcculcd. [403 H-0] (ii) 1Jy.,re was no force in the conlenlion that under Art. 299 the contract in quc:.tion had to he signed by the Secrciary to the Government \vhercas in the present case it "'as signed by the
Executive EnginC\:r. [403 GI Chatturbhuj J1i1haldas Jcsani v. Atforeshu•ar Parashran1 and Others. [19'4] S.C.R. 817, applied. (iii) 1be Jaw requires that a candidate should not have any interest in any contract v.·ith Government and therefore even a partner in a firm has an interest suffici-ent to atlrJct the provisions of s. 9A. l'hc fact that
the partnership itself had hecn dissolved in the present case would have no effect upon the relations between the first respondent ancl the Go,·ern- ment. 1403 HJ 'lbe first respondent could not by a private <lisc;olution of the part- nership escape his liability under the contract to the Gov-ernmcnl, and there was here no novation, because notice of the
disso]ution was not given to Government and the Government had not accepted the person to \Vhorn the business ""·as transferred in place of the respondent's finn. 1404 A] c CIVIL APPELLATE JURISDICTION : Civil Appeal No.
of 1967. Appeal under section I I 6 A of the Representation of People Act, 1951 from the judgment and order dated September 15, J 967 of the Mysore High Coutt in Election Petition No. 8 of 1967.
M. C. Chaf:/a, S. S. Javali and B. Datta, for the appellant. D. Narsaraju, B. S. Patil and R. V. Pillai, for respondent No. I. The Judgment of the Court was delivered by Hidayatullah, C.J. This is an appeal from the judgment and order of the High Court of Mysore, September 15, 1967. in an election matter in which the present appclla.nt was the election petitioner.
The election concerned the Yadagiri constituency and was held in February 1967 during the last general elections. To begin with, there were seven candidates. Of these five with- drew leaving the scat to be contested by the appellant and the first respondent here.
The first respondent was returned as the successful candidate having obtained 4,000 and odd votes in ex- cess of his rival. On March 30, I 967 the defeated candidate preferred an election petition which has given rise to the present appeal.
The election petition was dismissed by the High Court and in this appeal, the election petitioner claims that the decision of the High Court was erroneous and that the election of the first respondent was void for reasons to be stated hereafter.
The first respondent was a partner in a firm known as the Yadagiri Construction Company, Yadagiri. This finn held KONAPPA V. V!SHWANATH (Hidayatullah, C.J.) A . several contracts from the Mysore Government.
In this appeal, we are concerned with two contracts only which were the construc- tion of ( 1) a road known as "Nalwar Sonthi Road" in Gulbarga Division for a distance of four miles and ( 2) a dispensary build- ing for the Primary Health Centre at Wadagara. The contention of the election petitioner was that these contracts were subsisting on January 20, 1967 when the nominations were filed
and the subsistence of the contracts with the Government rendered the c election of the first respondent void. The election petitioner claimed that he was entitled to be declared elected after consider- ing that the votes cast in favour of the 1st respondent as thrown away.
The High Court in its judgment held that the contracts were not subsisting and that the election was tlierefore not affected. The matter is one of fact but it is necessary, before we enter into an examination of the facts, to set out the law relating to dis- qualification of candidates on this ground.
Under s. 9A of the Representation of the People Act, 1951 it is provided as follows : "A person shall be disqualified if, and for so long as there subsists a contract entered into by him in
course of his trade or business with the appropriate Government for the supply of goods to, or for the exe- cution of any works undertaken by, that Government. Explanation : For the
purpose of this sec- tion 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 Gov-
ernment has not performed its part of the contract either wholly or in part." It may be mentioned here that previously the section did not contain the Explanation. In Chatturbhuj Vithaldas
/asani v. ~oreshwar Parashram and others('), the existence of the liabil- ity on the part of the Government to pay for a fully executed contract was held to be a disqualification. If appears that Parlia- ment tllought that since Government moves slowly and many
bills remain outstanding for a long time, this part of the disability may be removed. The amendment, therefore, takes away from the ban of the section the subsistence of one side of the contract viz. the performance thereof by Government by paying for th~ goods supplied or the work executed. In other respects, the law remains very much the same as it was when the ruling referred to above was given.
We shall have to refer to certain. observa- tions in the ruling which in our opinion must be taken into (I) [1954) S.C.R. 817. L12S.CI/68-11 J98 SCPREME COURT REPORTS [ ! 969 J I S.C.R.
account before reaching the conclusion whether the contract or contracts continued to subsist on the date on which the candidate offered himself for election. We shall now continue our narra-
tion of the facts. As has been slated already, there were two contracts one for the construction of a road for a distance of four miles and the other for the construction of a dispensary building.
Two sepa- rate agreements have been produced which were entered into by the Yadagiri Construction Company with the Government for the execution and performance of these contracts. It was urged in the High Court by the election petitioner that both these con – tracts remained incomplete and, therefore, they subsisted and that the candidate was under a disqualification and could not stand for the election.
The contract for the construction of the road. entered into by the Yadagiri Construction Company, included twelve it.ems which the firm had to complete. They arc conveni- ently described as items I to 7 and 8 to J 2.
The case of the election petitioner was that although items 1 to 7 had been com- pleted, items 8 to 12 remain."..d to be completed. In the Schedule to the contract for the building of the dispensary, a number of items were included in the Schedule. Of these, 8 items were found to be incomplete and, therefore, the same position ensued as in the case of road. The evidence led in the case consisted of documents from the Public Works Department and oral testimony of the engineers who were in charge of these constructions and others.
After appraising the evidence, the High Court came to the conclusion that although some of the items from these two contracts might not have been completed, still the contrncts as a whole were substantially performed and, therefore, there was no har to the candidature of the !st respondent.
The High Court also held that although these agreements contained a clause for maintenance and repairs over a period of time after the comple- tion of the work of construction, that did not make the contracls to subsist and therefore, that too was not a disability.
Mr. Chagla in arguing the appeal tries to establish that both the conclusion of the High Court are erroneous. Th.e evidence in the case, as is usual, is widely discrepant between the parties. They both held certificates issued by the Public Works Depart- ment, one set showing that the work had been completed and a subsequently issued set showing that soml!thing remained to be done and that the contracts were still subsisting. We shall refer to these documents now.
c The contract in relation to the road was entered into on December 17, !962 and is evidenced by Ex. P-10. The Schedule to the e-0ntract showed that the construction had to be completed according to it.
The contract went on to provide by cl. 20 as follows : c KONAPPA v. VISHWANATH (Hidayatullah, C.J.) " …… The conractor is to maintain the recons- tructed portion of the road for a period of three months
after the Executive Engineer has certified the same to be completed to his satisfaction". The Schedule to this contract provided for surfacing of the road, · collection of Shahabad soling stones, collection of muram for earth work, spreading muram over soling and metal etc. In addi- tion to the proper construction of the road; it was the duty of the contractor to supply and fix mile and hectometer stones and to fix the road boundaries and demarcation stones etc. This work represents items 8 to 12. Those relating to the road proper are items 1-7 to which also reference has been made earlier. Now it is agreed on both sides that items 1-7 were duly
completed. The dispute is with regard to items 8-12. Nomi- nation to the Assembly had to be filed on 20th January, 1967 at the latest. 21st January was fixed for scrutiny of the nomina- tion papers and the election was to follow in the month of Febru- ary.
On 18th January, 1967, the first respondent obtained a certificate (Ex. P-1) that his contracts had been fully performed. He approached the Executive Engineer on the 19th. The Exe- cutive Engineer was busy throughout the day.
The respondent therefore asked his Personal Assistant (who incidentally is a gazetted officer of the rank of an Assistant Engineer) to give him the necessary certificate. The Personal Assistant telephoned to
the Assistant Engineers in charge and on their statement that the work had been physically completed, he granted the certificates to that effect. It appears that the election petitioner was also busy
in his tum. He obtained cancellation of these certificates from the Executive Engineer on the following day. The Executive Engineer asked the Assistant Engineers ~o state whether the work had been completed and the Assistant Engineer thereupon gave . the certificate that items 8-12 of the first contract were not com- p!e•e. We have so far described the contract dealing with the road.
The contract for the construction of the dispensary was exe- cuted on February 23, 1966. The schedule to that contract con- tained a description of 27 items which had to be completed. In addition, there was the requirement that the entire premises would be cleaned and put in habitable state and then handed over. Here also the dispute is whether the entire contract had been completed or not.
It is the case of the election petitioner that 9 items were left incomplete including the construction of a compound wall 30 ft. long for the quadrangular open yard, supplying welded
mesh for the front waiting' room and to the rear opening, white- washing of one room, paint work, floors etc. This also was certi- fied at first to be completed but later the certificate was revised St:PREME COURT REPORTS
(1969]1 S.C.R. and it was stated that the work was not complete. It is between It. these two rival certificates and the evidence relating to them that the matter has to be decided.
In respect of the road, the Assistant Engineer in charge of the work gave a notice on December 20, 1966 saying that certain work was not complete. Items 8-12 were, however, not men-
tioned there. The High Court was of the opinion that this omission completely demonstrated that that portion of the work which is now stated to be incomplete must have been completed. In answer to this. Mr. Chagla has contended that he had asked for the issue of a Commission in the High Court for the inspection of the spot (which petition he has repeated here) and he slated that even today, this part of the work has not been
completed. However we do not go by such petitions nor arc we inclined to issue a Commission which has been asked for in this Court. We consider the evidence, such as it is, and we find the correct situ- ation to be this.
P.W. 3, the Assistant Engineer no doubt slated in his notice that the "balance items" were only three. He had really mentioned 4 items. but had struck out item No. 2. That, however. did not show that no other work remained to be done. The certificates arc there.
That in favour of the completion of the work were given by the Personal Assistant to the Executive Engineer on the ·day the Executive Engineer was absent. No doubt. the Personal Assislant worked as the head of the office in the absence of the Executive Engineer. but it is on record and duly proved that he had no authority to issue the completion certi- ficates which he did.
The Personal Assistant explained that he had issued the certificates because they were urg~ntly rcquirc<l for election purposes and because the Assistant Engineer under whose supervision the construction of the road was taking place had reported comple!ion of the work.
The Executive Engineer, however. verified this again from the Assistant Engineer and found that items 8–12 remained to be completed. Mr. Nara- saraju complains of the conduct of the Executive Engineer by
saying that he did not visit the spot to sec for himself _whether the completion had been made or not. He states that m Ex. P-1 I in which the completion was reported on I 8-1-1967 there is no mention of items 8-12 and it is different in language from Ex. C-1 in which items 8-12 arc shown not to have been completed. We do not think that anything turns on that.
The Officers of the Public Works Department have come to the witness box and have mainiaincd that these items were in fact not completed be- fore the election took place. We are satisfied that although the
construction of the road was complete the additional items which ore described as "miscellaneous" in the contract still remained to be completed. What bearing this will have upon the election of
the first respondent is something which we shall consider after we have analysed the evidence with regard to the hospital. c c KONAPPA V. VISHWANATH (Hidayatullah, C.J.) In respect of the hospital also, the first respondent obtained the certificate from the Personal Assistant to the Executive Engi- neer that the work had been completed. This is Ex. P-1. Here again, the Assistant Engineer was consulted and the certificate showed that there were physical completion of the work. Later this certificate was also contradicted by the issuance of another certificate by the Executive Engineer that the work remained in- complete. This information was given by the Executive Engineer to the Returning Officer by Ex. P. 13 because it was an important matter connected with the election.
Mr. Narasaraju hinted that some outside influence was at work in the cancellation of the earlier certificate inasmuch as the Minister for the Public Works Department was present at Y adagiri and had also camped at Gul- barga on the following day. He pointed out that the Chief Engi- neer and the Executive Engineer were also present. The insinua- tion is that this was done under the pressure of the Minister, be- cause the Congress had been consistently losing the seat at Yada- giri and it was intended that the first respondent should be knocked out to ensure Congress victory.
We do not find any evidence which shows that the Minister took any interest in this matter al- though his presence may give rise to some suspicion. We can- not go on suspicion alone. It is obvious that both sides were straining every nerve to get some documentary evidence in their hands to prove, one that the work was inc._omplete and the other, that the work was completed. The later certificates clearly show that certain parts of the work remain.~d to be completed and they certainly were overlooked when the first certificate was given. That they were minor items is not much to the purpose.
The con- tracts as such were not fully performed. Although we were hesi- tating whether to apply the de minimis rule to this case we tl1ink that there are other considerations why we should refrain from applying that rule.
We make our position clear. If the work is completed, it would not mean that the contract is subsisting, if, say, a glass pane is found broken or a tower bolt or a drop bolt or a handle has not been fixed where it should have been. The law is not so strict as all that and a sensible view of the section will have fo be taken. The right of a person to stand for an elec- tion is a valuable right just as a right of a person to vote was con- sidered a valuable right in the leading case of Ashby v. White('). But if the contract subsists in such manner that it cannot be said to have been substantially completed, the law must take its own course. It is of the essence of the law of Elections that candidates must be free to perform their duties without any personal motives b.~ing attributed to them.
A contractor who is still holding a contract with Government is considered disqualified, because he is in a position after successful election to get concession for him- self in the performance of his contract. That he may not do so (1) [1703] 2 Ld. Raym, 938.
[1969] i s.c.rc is not relevant. The possibility being there, the law regards it necessary to keep him out of the elections altogether. But as we stated, this will be only wh.~re the contract has not been fully per- formed, although what is full perfonnance of a contract or com- pletion, is a matter on which we do not wish to express a final opinion in this case, because it depends on the circumstances of each case and more particularly because there is
here another condition to which we have referred. In both the contracts, there was a condition that for a period of three months in one and for a period of one year in the other, the contractor would make due repairs to all the defective parts in the execution of the contract. Th.e question is whether the con- tract can be said to be subsisting in view of this clause. Both
sides referred us to Hudson's Building and Engineering Con- tracts. In one passage, Hudson regarded such a clause as in the nature of a 'repair clause'. But Hudson was not dealinl! with the law of election when he was discussing a clause such as we have in this case.
We have to interpret this clause in the context of election Jaw. Now the contract must be said to subsist if a portion of it is required to be perfom1ed at any time, because so long as the contract has not be~n discharged, by full perfonnance, it must c
be taken to subsist. Mr. Narasaraju contends that the phrase "contract for the execution of the work" shows that i• is the exe- cution of the original work which is contemplated and not any condition of guarantee for repair. In our opinion, this argument, however, ingenious, is not acceptable because
a similar point . E arose in the case to which we referred earlier. In Clwtturbhuj Vithaldas Jasani's( 1 ) case, Bose J. dealt with a similar point in the following words : '"It was argued that asstm1ing that to he the case,
then there were no longer any contracts for the "supply of goods" in existence but on!y an obligation arising under the guaran•ec clause. We arc unable to accept such a narrow construction.
This tenn of the contract. whatever the parties may have chosen to call it. was a tenn in a contrac! for the supply of goods. When a contract consists of a number of tcnns and conditions each condition docs not form a separate con-
tract hut is an item in the one contract of which it is a part. The consideration for each condition in a case like this is the consideration for the contract taken as a whole. Tt is not split up into
several considerations apportioned between each tenn separately. But quite apart from that, the obligatiGn, even under this tem1. was to supply fresh stocks for these three depots in ex-
change for the stocks which were returned and so even (I) [1954] S C.R. 81~. c KONAPPA V. VISHWANATH (Hidayatullah, C.J.) when regarded from that narrow angle it would be a contract for the supply of goods.
It is true they are replacements but a contract to replace goods is still one for the supply of the goods which are sent as re- placements." Applying these observations in the context of construction of buildings and roads, it is obvious that if some part is found defec- tive and has to be done again, the contract of execution as such is still to be fully performed. It is possible to describe the action liaken as one to repair the defect, but in essence it -is a part of the contract of execution, because no execution can be said to be proper or complete till it is properly executed. Taking the fact that some portion of the original contracts remained to be performed with the fact that under the contracts the contractor was required not only to complete the original work but to re- pair defects or re-do something which he had not properly done, we think this matter must fall within s. 9A of the Representation of the People Act. This is not a case like the supply of a refrige- rator which after giving service for some time goes out of order and somethinl! has to be done to replace a part which is defec- tive. The analogy is not quite apposite. Here the building was completed very recently and the flooring had to be re-done and various other things were left unfinished and these had to be completed by the contractor.
Similarly in relation to the road, although the surface was prepared and the road was in actual use, under the contract, mile and hectometer stones had to be fixed and certain other stones fixed at curves and boundaries. This was not done.
The two contracts therefore were not fully per- formed and under cl. 20 of the agreement, it was incumbent upon the contractor to complete this part of his obligation. In our opinion, the High Court was in error in holding that the con- tracts had been fully performed and therefore s. 9A did not apply.
Mr. Narasaraju raises three legal points. The first is that under Art. 299, the contract had to be signed by the Secretary to the Government whereas the contract was signed by the Execu- tive Engineer. This point was also considered in Jasani's(') case and it was held that it did not go to save the bar of the election law to the candidature. Next it is argued that the section is appli- cable to a person whereas the contract was with a firm and there- fore the first respondent was not barred from standing for the election.
In our opinion, the High Court has taken the right view of the matter. The law requires that a candidate shonld not have any interest in any contract with Goverrnnent and even a partner has an interest sufficient to attract the provi- sions of s. 9A.
Lastly it is argued that the partnership (1) (1954) S C.R. 817. [1969] I S.C.R. itself had been dissolved. That would have no effect upon the relations between the first respondent and the Govcrnmeut. The first respondent wuld not by a private dissolution of the partner- ship escape his liability under the contract to the Government. and there was here no novation, because notice of the dissolution was not given to Government and the Government liad not accept- ed Hampanna to whom the business was transferred in place of the firm.
We view the transfer of the entire contracts to Ham- panna with some suspicion. It appears that on the eve of the election, the first respondent who wished to contest the scat from Yadagiri, hurried through his contracts, managed to get a com- pletion certificate which was not quite accurate,
dissolved the par!ncrship with a view to clear himself from all connections with the contracts so that he could stand for the election. In this effort, he has distinctly fajJed. We arc satisfied that this appeal must succeed and the· appeal is therefore allowed, the election of the first respondent is dec- lared void.
Jn this view of the matter, the votes cast in favour of the first respondent must be treated as thrown away. As there was no other contesting candidate we declare the appellant ( elt.:ction petitioner) elected to the seat from the Yadagiri consti- tuency.
The first respondent shall bear the costs of the appellant throughout. R.K.P.S. Appeal allowed. c