Saturday, 28 September 2019

Whether court can rely on evidence of witness who has not entered in witness box?

I have heard the learned counsel for the parties at length and I have also perused the exhibited documents. Since it has been urged on behalf of respondent no. 2 that the petitioner despite filing an affidavit in lieu of evidence had not entered the witness box and thus said affidavit could not be taken into consideration, that aspect of the matter would have to be first considered. As per provisions of Section 87(1) of the Act of 1951, an Election Petition has to be tried in accordance with the procedure applicable under the Code to the trial of suit. As per provisions of Order XVIII Rule 4(1) of the Code, examination-in-chief of a witness has to be on affidavit. As per Order XVIII Rule 4(2) of the Code, the cross-examination and re-examination of a witness whose evidence (examination-in-chief) by affidavit has been furnished to the Court has to be taken either by the Court or by the Commissioner appointed by it. Under Order XVIII Rule 5 of the Code, the manner in which evidence has to be taken in appealable cases has been prescribed.

The aforesaid provisions fell for consideration before the Hon'ble Supreme Court in Rasiklal Manikchand Dhariwal & Another Versus M.S.S. Food Products [MANU/SC/1408/2011 : (2012) 2 SCC 196]. A similar contention as sought to be raised by the respondent no. 2 herein was raised before the Hon'ble Supreme Court. It was urged therein that on behalf of the plaintiff, three witnesses were tendered in evidence and their examination-in-chief was filed by means of affidavits. However, as required under Order XVIII Rule 5 of the Code, said witnesses never entered the witness box nor confirmed the contents of the affidavits. After referring the various earlier decisions, it was observed by the Hon'ble Supreme Court in paragraphs 77 and 78 as under:-

"77. For all this, it cannot be said that in Ameer Trading Corpn. Ltd., it has been laid down as an absolute rule that in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be treated as part of the evidence unless the deponent enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature. Where the examination-in-chief of a witness is produced in the form of an affidavit, such affidavit is always sworn before the Oath Commissioner or the notary or judicial officer or any other person competent to administer oath. The examination-in-chief is, thus, on oath already.

78. In our view, there is no requirement in Order 18 Rule 5 that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. As it is such witness is required to enter the witness box in his cross-examination and, if necessary, reexamination. Since a witness who has given his examination-in-chief in the form of affidavit has to make himself available for cross-examination in the witness box, unless the defendant's right to cross-examine him has been closed, such evidence (examination-in-chief) does not cease to be legal evidence."

Thus, from the aforesaid, it is clear that there is no requirement in Order XVIII Rule 5 of the Code that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. In the present case, the respondent no. 2 has not chosen to cross-examine the petitioner and hence, merely for formally proving the affidavit, the petitioner was not required to enter the witness box. Moreover, the respondent no. 2 has also not stepped into the witness box after tendering his affidavit in lieu of evidence. He was also not sought to be cross-examined by the petitioner.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Election Petition No. 6/2014

Decided On: 31.10.2018

Sevakbhau Nirdhangi Waghaye Patil Vs.  The Returning Officer, Sakoli and Ors.

Hon'ble Judges/Coram:
A.S. Chandurkar, J.

Citation: 2019(3) MHLJ 510


1. By this Election Petition filed under Section 81 of the Representation of the People Act, 1951 (for short, 'the Act of 1951'), the petitioner seeks to challenge the election of the respondent no. 2 as Member of the Maharashtra Legislative Assembly from Constituency No. 62-Sakoli. The said elections were held on 15.10.2014 and the respondent no. 2 was declared elected on 19.10.2014. This Election Petition accordingly came to be filed on 08.12.2014.

2. In the Election Petition, it has been pleaded by the petitioner that pursuant to the notification dated 20.09.2014 issued by the Election Commission of India, which was published in the official gazette on the same day, various dates were scheduled for holding elections to the State Legislative Assembly. The last date for filing of nominations was 27.09.2014 and the nomination forms were to be scrutinized on 29.09.2014. The date of withdrawal of candidature was 01.10.2014. The Poll was held on 15.10.2014 and the respondent no. 2 was declared elected on 19.10.2014 by polling the highest number of valid votes and defeating amongst others, the petitioner. It is further pleaded that the respondent no. 2 had entered into various contracts with the State Government for executing its works and these contracts were subsisting on 29.09.2014 when the nomination papers were scrutinized. The details of those contracts were referred to as under:

a. Construction of Enclosure for Tiger Cubs in Compartment No. 543 of East Pench Range in the Pench Tiger Reserve, Nagpur Division, Tahsil Ramtek, District Nagpur. Said work had been completed on 16.07.2013. However, maintenance and repair period of two years was not over when the nomination form of the respondent no. 2 was filed and the security deposit of the respondent no. 2 had not been returned to him.

b. Construction of Samaj Bhawan on Varthi Road, Bhandara. Said work was incomplete on the date of filing of the nomination form;

c. Renovation/construction of the Museum Building at Koradi, Tahsil Kamptee, District Nagpur. It was stated that said work was incomplete and was still going on when the nomination form of respondent no. 2 was filed; and

d. Extension and renovation of Metro Blood Bank at Daga Memorial Hospital, Nagpur. The said work was completed on 30.01.2014 but the maintenance and repair period of two years had not been completed on the date of filing of the nomination form. Similarly, the security deposit of the respondent no. 2 had not been returned to him.

3. It is further pleaded that the aforesaid contracts were awarded by the Public Works Department of the State of Maharashtra where the respondent no. 2 was registered as a Class-IV Contractor. On 20.10.2014, the respondent no. 2 applied to the Executive Engineer of the Public Works Department, Bhandara for cancellation of his registration as a Class-IV Contractor. On 22.10.2014, the Additional Chief Engineer of the said Department ordered cancellation of said registration and this fact was informed to the respondent no. 2 by letter dated 27.10.2014.

It is on the aforesaid factual matrix that the petitioner has pleaded that by virtue of provisions of Section 9A of the Act of 1951, the respondent no. 2 has incurred a disqualification on the ground that the aforesaid four contracts were subsisting on the date of scrutiny of nomination papers and hence the election of respondent no. 2 was void. It is thus prayed by the petitioner that the said election of the respondent no. 2 as a returned candidate be declared void and hence quashed.

4. Written statement has been filed by the respondent no. 1 at Exhibit 11. In that written statement, it has been stated that at the stage of scrutiny of nomination papers, the petitioner had not filed any objection to the nomination of the respondent no. 2. On that count, the petitioner was not entitled for any relief whatsoever.

5. In the written statement filed by respondent no. 2 at Exhibit 6, it has been pleaded that none of the contesting candidates including the petitioner had raised any objection to the nomination paper of the respondent no. 2 as a consequence of which the same was scrutinized and accepted. It was denied that the contracts referred to by the petitioner were subsisting on the date of scrutiny of nomination papers. As regards the works referred to by the petitioner, the respondent no. 2 has stated as under:-

(a) The work in question was completed as per the completion certificate dated 16.07.2013 issued by the Sub-Divisional Engineer.

(b) The work in question was to be completed within a period of four months but due to complaints and efflux of time, the period was not extended for completing the work. The Sub-Divisional Officer on the basis of the incomplete work and as the period was not extended, accepted and approved the final bill of work on 05.02.2013 and issued a completion certificate.

(c) The work in question was to be completed within a period of nine months but due to efflux of time the contract was not extended. On the basis of accomplished incomplete work on the last day of the period mentioned, Sub-Divisional Engineer accepted and approved the final bill submitted by the respondent no. 2 and issued completion certificate on 30.12.2013.

(d) Completion Certificate dated 30.01.2014 was issued by the Sub-Divisional Engineer towards said work.

6. It was further pleaded that on the application made by the respondent no. 2 his Contract License came to be cancelled by the Competent Authority and hence there was no contract subsisting on the relevant date. Disqualification under provisions of Section 9A of the Act of 1951 was not attracted and hence it was pleaded that the petitioner was not entitled for the relief of declaration as sought in the Election Petition.

7. In the light of the pleadings of the parties and after hearing the learned counsel for the parties, the issues arising in the Election Petition were finalized on 13.08.2018 and the same read thus:-

(1) Does the petitioner prove that the contract of renovation/construction of Museum building at Koradi, Tahsil Kamptee, District Nagpur, entered into between the State Government and the respondent No. 2 was operative on 27/09/2014?

(2) Does the petitioner prove that the contract of construction of Samaj Bhavan on Varthi Road in Bhandara city, entered into between the State Government and the respondent No. 2 was operative on 27/09/2014?

(3) Does the petitioner prove that work of maintenance and repair was for a period of two years till 16/07/2015 under the contract of construction of enclosure for tiger cubs in Compartment No. 543 (Trital Mangi) of East Pench Range in Pench Tiger Reserve, Division Nagpur, Tahsil Ramtek, District Nagpur entered into between the State Government and the respondent No. 2 and was in force on 27/09/2014?

(4) Does the petitioner prove that the respondent No. 2 was disqualified to contest the elections on 27/09/2014 under Section 9A of the Representation of the People Act, 1951?

(5) Does the petitioner prove that the election of the respondent No. 2 as returned candidate from 62 Sakoli Legislative Assembly Constituency is void and therefore has to be quashed?

(6) In the light of completion certificate dated 30/01/2014 in relation to the Work Order pertaining to Metro Blood Bank, whether by virtue of Clause-20 of the Tender document the contract in favour of respondent No. 2 can be said to be subsisting on 27/09/2014?

(7) In the light of completion certificate dated 16/07/2013 in relation to the Work Order pertaining to construction of enclosure for tiger cubs, whether by virtue of Clause-20 of the Tender document the contract in favour of respondent No. 2 can be said to be subsisting on 27/09/2014?

(8) In the light of completion certificate dated 05/02/2013 with regard to construction of Samaj Bhavan on Varthi Road, Bhandara, whether petitioner could say that the contract in that regard was subsisting on 27/09/2014 as said work was incomplete and under progress on that day?

8. The respondent no. 2 tendered a notice to admit documents to the petitioner under provisions of Order XII Rule 3 of the Code of Civil Procedure, 1908 (for short, 'the Code') and pursuant to that notice various documents came to be admitted by the petitioner. Same were accordingly exhibited. Affidavit in lieu of evidence dated 07.04.2017 tendered by the petitioner is at Exhibit 15-A. On 14.09.2018, the petitioner filed pursis at Exhibit 32 stating therein that the petitioner did not desire to examine himself or any other witness in support of the Election Petition. On 05.10.2018, the respondent no. 2 filed his affidavit in lieu of evidence which is at Exhibit 34. On 15.10.2018, the respondent no. 2 filed pursis at Exhibit 36 stating therein that he did not intend to examine himself or any other witness. In the aforesaid backdrop, the learned counsel for the parties were heard.

9. In support of the Election Petition, Shri R.M. Bhangde, learned counsel for the petitioner after referring to the pleadings of the parties and the exhibited documents submitted that the respondent no. 2 had undertaken four works pursuant to the tenders issued by the Public Works Department of the State of Maharashtra. As per the terms of each tender document a completion certificate was liable to be issued after satisfactory completion of the concerned work. Even after issuance of such completion certificate, the contract required the Contractor to rectify any defective work that would be intimated by the Executive Engineer to the Contractor within a period of twelve months from the date of the completion as certified in two works and during the period of twenty four months from the date of completion as certified by the Engineer-in-Charge in the other two works. On the basis of this clause by which the Contractor was liable for damage done and for imperfection during the said period, it is submitted that in all the four works though completion certificates had been issued prior to the date of filing of nomination, the period during which the defective work was to be rectified had not come to an end on 27.09.2014. As a result of the said clause requiring the Contractor to rectify the imperfect works noticed during the period of twelve/twenty four months after issuance of the completion certificate, the contract was subsisting on the date of filing of the nomination. It was thus submitted that under provisions of Section 9A of the Act of 1951, the respondent no. 2 was disqualified from contesting the elections to the Legislative Assembly. In that regard, learned counsel placed reliance on the decision of the Hon'ble Supreme Court in Konappa Rudrappa Nadgouda Versus Vishwanath Reddy & Another [MANU/SC/0394/1968 : AIR 1969 SC 447] and of this Court in Anand Raghu Naik Versus Savitri Satyavan Naik & Another [MANU/MH/1469/2016 : 2016 Mh.L.J. Online 44].

It was then submitted that part of the security deposit remained with the Public Works Department and the same was refunded to the respondent no. 2 after he was declared as elected. Under the terms of the contract, part of the security deposit was liable to be refunded after the period of twelve/twenty four months of rectifying the defective work came to an end. This indicated that the contract in question continued to operate and merely by the issuance of the completion certificate, the same did not come to an end. As per Clause 20 of the relevant contract, the Contractor's liability continued for the period agreed. It was further submitted that the respondent no. 2 had on 20.10.2014 issued a communication to the Executive Engineer, Public Works Department seeking cancellation of his registration as a Contractor Class-IV with the Department. This request was accepted by the Additional Chief Engineer of the Department on 22.10.2014. This would indicate that on the date of filing of the nomination form, the respondent no. 2 continued to be a registered Contractor with the Public Works Department and the cancellation of registration was subsequent to his being declared elected. This subsequent cancellation would not come to the aid of the respondent no. 2 and the disqualification stood attracted on the date of filing of the nomination. Reference was made to various exhibited documents to submit that the issues framed deserve to be answered in favour of the election petitioner and it be declared that the election of the respondent no. 2 was rendered void in view of disqualification under Section 9A of the Act of 1951.

10. Per contra, Shri Shashikant Borkar, learned counsel for the respondent no. 2 at the outset submitted that though the petitioner had tendered his affidavit in lieu of evidence at Exhibit 15-A, he did not step into the witness box to depose in terms of that affidavit. The contents of said affidavit were therefore not proved and thus there was no evidence brought on record by the petitioner. He referred to the provisions of Order XVIII Rules 4 and 5 of the Code and by referring to the decision in Anantrao Krishnaji Kulkarni Versus Smt. Vaishali Renukadas Vaidya [MANU/MH/1893/2011 : 2012 (2) Mh.L.J. 61], it was submitted that as the petitioner failed to enter the witness box and affirm the contents of the affidavit as filed, that affidavit would not form part of the evidence. It was then submitted that adverse inference deserves to be drawn against the petitioner for his failure to enter the witness box. For said purpose, he referred to the decisions in Vidhyadhar Versus Manikrao & Another [MANU/SC/0172/1999 : (1999) 3 SCC 573] and Ishwar Bhai C. Patel alia Bachu Bhai Patel Versus Harihar Behera & Another [MANU/SC/0173/1999 : (1999) 3 SCC 457].

Without prejudice to the aforesaid, the learned counsel referred to various clauses of the contracts in question and submitted that there was no evidence on record to indicate any defect in the works carried out by the respondent no. 2 being intimated to him. He referred to Clause 17 wherein it was stipulated that compensation was liable to be paid in case of bad work. He also referred to Clause 20 to submit that till the date of filing of the nomination form, the respondent no. 2 had not been issued any notice with regard to imperfect work. In absence of any evidence whatsoever that the contracts in question subsisted or that the works therein were incomplete, Issue nos. 1 to 3 were liable to be answered against the petitioner. As regards Issue nos. 4 and 5, it was submitted that the petitioner failed to examine the Returning Officer to prove that the petitioner was disqualified from contesting the election on 27.09.2014. He referred to the written statement filed by the respondent no. 1 at Exhibit 11 in which it was stated that no objections were raised to the nomination form of the respondent no. 2. The learned counsel then referred to the various completion certificates issued by the Department at Exhibits 18 to 21 to indicate that all the four contracts stood completed prior to 27.09.2014. As there was no breach of the contract, the Department had issued completion certificates and in case of any contingency the remedy under Clause 17 was always available to the Department. Referring to the manner in which the contract could be breached, the learned counsel relied upon the decisions in S. Munishamappa Versus B. Venkatarayappa & Others [MANU/SC/0310/1981 : AIR 1981 SC 1177], Smt. Aslhing alias Lhingjanong Versus L.S. John & Others [MANU/SC/0079/1983 : 1984 (1) SCC 205] and Prakash Khandre Versus Dr. Vijaya Kumar Khandre & Others [MANU/SC/0454/2002 : AIR 2002 SC 2345]. In the light of the registration of the respondent no. 2 as Contractor Class-IV being terminated, it could not be said that there was any contract subsisting as per provisions of Section 9A of the Act of 1951. Hence, Issue Nos. 6 to 8 were also required to be answered against the petitioner as the same were not proved by the petitioner. It was further submitted that merely because the security deposit was refunded after the date of filing of the nominations, same would not result in disqualifying the respondent no. 2 in view of the explanation to Section 9A of the Act of 1951. It was thus submitted that the Election Petition was liable to be dismissed as the election of the respondent no. 2 was valid and in accordance with law.

11. In reply, it was submitted by the learned counsel for the petitioner that the entire case of the petitioner was based on documentary material which documents had been admitted by the respondent no. 2. It was submitted that the decisions relied upon by the learned counsel for the respondent no. 2 were distinguishable in the light of the facts of those cases wherein the contract had been rescinded prior to the filing of the nomination form. In the present case, the registration was sought to be cancelled after filing of the nomination form and hence the respondent no. 2 was clearly disqualified.

12. I have heard the learned counsel for the parties at length and I have also perused the exhibited documents. Since it has been urged on behalf of respondent no. 2 that the petitioner despite filing an affidavit in lieu of evidence had not entered the witness box and thus said affidavit could not be taken into consideration, that aspect of the matter would have to be first considered. As per provisions of Section 87(1) of the Act of 1951, an Election Petition has to be tried in accordance with the procedure applicable under the Code to the trial of suit. As per provisions of Order XVIII Rule 4(1) of the Code, examination-in-chief of a witness has to be on affidavit. As per Order XVIII Rule 4(2) of the Code, the cross-examination and re-examination of a witness whose evidence (examination-in-chief) by affidavit has been furnished to the Court has to be taken either by the Court or by the Commissioner appointed by it. Under Order XVIII Rule 5 of the Code, the manner in which evidence has to be taken in appealable cases has been prescribed.

The aforesaid provisions fell for consideration before the Hon'ble Supreme Court in Rasiklal Manikchand Dhariwal & Another Versus M.S.S. Food Products [MANU/SC/1408/2011 : (2012) 2 SCC 196]. A similar contention as sought to be raised by the respondent no. 2 herein was raised before the Hon'ble Supreme Court. It was urged therein that on behalf of the plaintiff, three witnesses were tendered in evidence and their examination-in-chief was filed by means of affidavits. However, as required under Order XVIII Rule 5 of the Code, said witnesses never entered the witness box nor confirmed the contents of the affidavits. After referring the various earlier decisions, it was observed by the Hon'ble Supreme Court in paragraphs 77 and 78 as under:-

"77. For all this, it cannot be said that in Ameer Trading Corpn. Ltd., it has been laid down as an absolute rule that in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be treated as part of the evidence unless the deponent enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature. Where the examination-in-chief of a witness is produced in the form of an affidavit, such affidavit is always sworn before the Oath Commissioner or the notary or judicial officer or any other person competent to administer oath. The examination-in-chief is, thus, on oath already.

78. In our view, there is no requirement in Order 18 Rule 5 that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. As it is such witness is required to enter the witness box in his cross-examination and, if necessary, reexamination. Since a witness who has given his examination-in-chief in the form of affidavit has to make himself available for cross-examination in the witness box, unless the defendant's right to cross-examine him has been closed, such evidence (examination-in-chief) does not cease to be legal evidence."

Thus, from the aforesaid, it is clear that there is no requirement in Order XVIII Rule 5 of the Code that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. In the present case, the respondent no. 2 has not chosen to cross-examine the petitioner and hence, merely for formally proving the affidavit, the petitioner was not required to enter the witness box. Moreover, the respondent no. 2 has also not stepped into the witness box after tendering his affidavit in lieu of evidence. He was also not sought to be cross-examined by the petitioner.

The ratio of the aforesaid decision clearly applies to the case in hand and the submission as made by the learned counsel for the respondent no. 2 in that regard by relying upon the decision in Anantrao Krishnaji Kulkarni (supra) cannot be accepted. It may be noted that after the decision of the learned Single Judge in Anantrao Krishnaji Kulkarni (supra) dated 05.07.2011, the legal position stands settled in view of the subsequent decision in Rasiklal Manikchand Dhariwal & Another (supra) which was decided on 25.11.2011. In that view of the matter, said contention of the respondent no. 2 cannot be accepted. It is accordingly held that the affidavits in lieu of evidence tendered by the parties are liable to be taken into consideration as evidence led by them.

13. The provisions of Section 9A of the Act of 1951 prescribe that a person would be disqualified if and for so long as there subsists a contract entered into by him in the course of his trade or business with the appropriate government for the execution of the works undertaken by that government. As per the explanation to the said provision, a contract shall be deemed not to subsist only by reason that the Government has not performed its part of the contract either wholly or in part.

Before considering the rival contentions in the light of the pleadings and evidence on record, it would be necessary to note the following observations of the Hon'ble Supreme Court in Kartar Singh Bhadana Versus Hari Singh Nalwa & Others [MANU/SC/0201/2001 : AIR 2001 SC 1556]. In paragraph 7 of said decision, it has been observed thus:

"7. .......where it is alleged that a candidate holds a contract for the execution of works undertaken by an appropriate Government, Section 9-A requires (a) that there should be a contract entered into by the candidate; (b) that it should be entered into by him in the course of his trade or business; (c) that it should be entered into with the appropriate Government; (d) that it should subsist; (e) that it should relate to works undertaken by that Government and (f) that it should be for the execution of such works. The provisions of Section 9-A disqualify a citizen from contesting an election; a citizen may, therefore, be disqualified only if the facts of his case squarely fall within the conditions prescribed by Section 9-A."

It is thus necessary to consider in the aforesaid legal backdrop as to whether on the date of filing of the nomination form, the contracts between the respondent no. 2 and the State subsisted.

14. AS TO ISSUE NOS. 1 TO 3 AND 6 TO 8:-It is common ground between the parties that the respondent no. 2 being a Registered Class-IV Contractor with the Public Works Department of the State of Maharashtra was granted four works that have been referred to by the petitioner. The works in question were undertaken by the Public Works Department of the State Government and the contracts were entered into with the appropriate Government. The following table would indicate the relevant features of those works.

{ Table omitted}

(Hereinafter, the aforesaid contracts would be referred to as Contract (a), (b), (c) and (d) respectively). All the aforesaid four works were granted to the respondent no. 2 much prior to issuance of the notification for holding the elections in question. Similarly, the Department also granted completion certificates with regard to all the four works prior to that date. Clauses 7, 17 and 20 are relevant for the present purpose and hence the relevant portions thereof are being reproduced hereunder:-

{ Table omitted}

With regard to works (b) and (c), the period prescribed under Clause 20 is twelve months.

15. As per Clause 7 of the Tender Document, on completion of the work in question, the contractor is issued a certificate by the Executive Engineer. This certificate however can be issued only after the contractor has removed from the premises on which the work has been executed all relevant materials and after the work in question is measured by the Engineer-in-charge. As per Clause 17, at any time before the security deposit or part thereof is refunded to the contractor, if the Engineer-in-charge or his subordinate finds that any work is executed imperfectly or that the materials or articles provided for the execution of the work are of an inferior quality to that contracted, the Engineer-in-charge can intimate in writing to the contractor and it would be for the contractor to remove those materials or articles and provide suitable materials or articles at his own cost.

16. As per Clause 20 if during the period of twelve/twenty four months from the date of completion as certified by the Engineer-in-charge pursuant to Clause 7 of the contract or twelve/twenty four months after commission of the work whichever is earlier in the opinion of the Engineer-in-charge, the said work is defective in any manner whatsoever then the contractor has to duly commence execution and carry out at his cost the necessary work to rectify the defects. These relevant clauses therefore indicate that even after a final certificate as per Clause 7 indicating completion of the work in question is issued by the Executive Engineer, if in the opinion of the Engineer-in-charge during the period of twelve/twenty four months from the date of completion as certified by the Engineer-in-charge as per Clause 7, some work is found defective, the contractor is liable for the removal/rectification of the imperfect work.

Clause 20 of each contract prescribes that the period of twelve/twenty four months when the Contractor would be liable for damage done and imperfection would commence from the date of completion as certified by the Engineer-in-Charge or after commissioning of the work whichever is earlier. The expression "after commissioning of the work" in the present context would mean after the work is complete and is verified to see that it is as per specifications. However, in the present case the Department has issued Completion Certificate with regard to each Contract and the respondent no. 2 has also relied upon the same to indicate non-subsistence of any Contract. Thus, the period of twelve/twenty four months would have to be reckoned from the date of issuance of the Completion Certificate issued under Clause 7 of the Contract.

17. In the light of aforesaid, if the documentary evidence on record with regard to each contract is considered, the following material is available on record:-

AS TO CONTRACT (a):-With regard to Contract (a), the tender papers are at Exhibit 24. The work order is dated 28.03.2012 and the time limit of two calendar months for completing the work is stated to commence from the date of the work order. The completion certificate in question under Clause 7 has been issued on 16.07.2013 and it is at Exhibit 21. The security deposit has been paid to the respondent no. 2 on 23.06.2015 as per Exhibit 31. As per communication dated 28.03.2012 issued by the Executive Engineer the said work was to be completed within a period of two months. However, as per the Completion Certificate at Exhibit 21, extension was granted upto 27.07.2012 and the actual date of completion of the work is 16.07.2013. As per Clause 20 of the tender document, the period of twenty four months from the date of completion as certified would thus come to an end on 15.07.2015. This period of twenty four months goes beyond the last date of filing nominations which was 27.09.2014. Cancellation of the registration of the respondent no. 2 is also after the last date of filing of nominations. Thus, even on 27.09.2014 it was open for the Department to invoke the liability clause against the respondent no. 2 as per Clause 20 of the Contract. Fact that said Clause was not actually invoked is immaterial. Payment of security deposit on 23.06.2015 as per Exhibit 31 is also relevant to indicate subsistence of the said Contract. These facts are thus sufficient to conclude that Contract (a) was subsisting on the last date of filing nomination forms. The petitioner has thus proved Issue Nos. 3 and 7.

AS TO CONTRACT (b):-With regard to Contract (b), the tender papers are at Exhibit 22. The work order was issued on 08.10.2012 as per the communication issued by the Executive Engineer and the work was to be completed within a period of four calendar months. In this work order, the period of liability as fixed is for twelve months from the commissioning of the work or from the issuance of the completion certificate under Clause 7 whichever is earlier. Again with regard to this contract, the work was to be completed within a period of four months and in the light of the material on record that period ended by February-2013. The liability under Clause 20 of the contract came to an end after a period of twelve months from issuance of the Completion Certificate. The Completion Certificate at Exhibit 20 is dated 05.02.2013. Thus completion is prior to the filing of the nomination form which date is 27.09.2014. Hence, mere refund of the security deposit on 26.05.2016 as per Exhibit 30 would not by itself be sufficient to conclude that subsistence of the Contract and the explanation to Section 9A of the Act of 1951 takes care of such situation. Thus, the petitioner has failed to prove Issue nos. 2 and 8. It is held that the respondent no. 2 would not incur disqualification by virtue of the Contract (b).

AS TO CONTRACT (c):-With regard to Contract (c), the tender papers are at Exhibit 23. The date of the said work order is 14.03.2013 and the time for completion granted was three months from the date of issuance of the work order. A period of twelve months has been prescribed under Clause 20 and the completion certificate under Clause 7 has been issued on 24.09.2013 as per Exhibit 18. With regard to this work order also, the period of twelve months from issuance of the Completion Certificate would expire by 23.09.2014. As the Completion Certificate was issued on 24.09.2013, the period of liability of twelve months came to an end prior to filing of the nomination form in view of applicability of the former part of Clause 20. Thus even for this contract, the evidence on record is insufficient to conclude that on the date of filing of the nomination form, the said contract subsisted. The petitioner has thus failed to prove Issue No. 1.

AS TO CONTRACT (d):-With regard to this Contract, the tender papers are at Exhibit 25. By letter dated 15.04.2013 at Exhibit 28, the Executive Engineer directed the respondent no. 2 to commence the work within a period of ten days from receipt of said work order and the work was to be completed within a period of three months therefrom. Clause 20 of the tender document has prescribed a period of liability of twenty four months either from the date of commissioning of the work or from the date of completion as certified under Clause 7 of the contract. The completion certificate at Exhibit 19 is dated 30.01.2014. The security deposit in question has been refunded to the respondent no. 2 as per Exhibit 29 on 24.09.2015.

As per Clause 20 of the tender document, the period of twenty four months from the date of Completion Certificate would end on 29.01.2016. In the light of this documentary material, it becomes clear that the Contract in question and the liability under Clause 20 was subsisting on the date of filing of the nomination form which was 27.09.2014.

18. Another relevant aspect which has to be considered in conjunction is that as per Clause-1 of the Conditions of Contract pertaining to security deposit, the amount of security deposit has to be refunded alongwith payment of final bill if the date up to which the contractor has agreed to maintain the work in good order is over. However, if such date is not over then only 50% of the security deposit is to be refunded with the final bill and the balance amount of security deposit is to be released after expiry of the period upto which the contractor has agreed to maintain the work in good order. As per Exhibit 59 dated 24.09.2015, the amount of security deposit of Rs. 59,500/- came to be refunded to the respondent no. 2 for this Contract. This amount of Rs. 59,500/- is towards 50% of the total security deposit of Rs. 1,19,000/- which has been prescribed as the security deposit at Exhibit 25. Thus, refund of 50% security deposit on 24.09.2015 would also indicate continuation of the liability under Clause 20 of the contract at least till that date. This is another factor indicating subsistence of the Contract on the date of filing of the nomination form. Thus from these admitted documents, it is clear that the work in question was completed on 30.01.2014 and the period of twenty four months under Clause 20 reckoned from the date of issuance of the Completion Certificate did not come to an end till the date of filing of the nomination form on 27.09.2014. It will thus have to be held on the basis of aforesaid material that with regard to Contract (d), the same was subsisting on the date of filing of the nomination form by the respondent no. 2.

19. In Konappa Rudrappa Nadgouda (supra), the successful candidate had entered into a contract with the Public Works Department. According to the election petitioner therein, Item Nos. 8 to 12 of that contract were not complete. On 18.01.1967, the candidate obtained a certificate that the contracts had been fully performed. The nomination form was to be filled by 20.01.1967 and 21.01.1967 was the date of scrutiny. It was found that in the contracts there was a condition that for a period of three months/one year, the Contractor would make due repairs to all the defective works in the execution of the contract. It was held that for a contract to subsist even if a portion of it is required to be performed at any time, the same cannot be said to be discharged by full performance and the contract must be taken to subsist. In that context, it was held that the disqualification under Section 9A of the Act of 1951 would be attracted as the contracts were not fully performed.

In Anand Raghu Naik (supra), it has been held in the context of Section 9A of the Act of 1951 that as long as the liability to make good the loss or damage (if noticed) in the work is concerned and if such liability exists on the date of the nomination then it could not be held that the contract stood concluded.

20. The decisions relied upon by the learned counsel for the respondent no. 2 take into consideration the aspect of the contract having been put to an end before the nomination papers were filed. In S. Munishamappa (supra) on 25.03.1976, an agreement was entered into by the concerned candidate. The period of maintenance mentioned in the contract was for a period of twelve months from the date of completion of the work. All works except three items were completed by November-1977. On 28.01.1978, the candidate-Contractor issued a letter to the concerned Executive Engineer to immediately cancel the work license that was issued to the Contractor. Thereafter, on 01.02.1978, the said Contractor filed his nomination papers. He was elected in the said elections. While considering the question, as to whether the contract was subsisting on the date of filing of the nomination papers, it was held that in view of the letter dated 28.01.1978 and the endorsement made thereon, the contract between the parties had come to an end and it was treated as cancelled. The cancellation of license of the Contractor was also taken into consideration and it was held that the contract between the parties had come to an end before the Contractor filed his nomination papers. Though it was urged in that case that the said Contractor had committed a breach of the contract, it was observed that the contract stood discharged on account of that breach and therefore, it could not be said to be subsisting thereafter. The effect of the maintenance clause in the said contract was therefore not considered. It was thus held that there was no subsisting contract on the date of filing of the nomination papers in view of the communication dated 28.01.1978 issued by the Contractor.

In Smt. Aslhing (supra), on 30.11.1979, the Contractor issued a letter to the Executive Engineer stating therein that he was closing the contract. The last date for filing the nomination papers was 10.12.1979. It was held that in view of the letter issued by the Contractor putting an end to the contract though by breach, the contract was not subsisting on the date of filing of the nomination papers.

In Prakash Khandre (supra), the aforesaid decisions were considered by the Hon'ble Supreme Court. The facts therein are that prior to the last date of submitting nomination forms which was 18.08.1999, the Contractor had made a request to the concerned Engineer to forthwith terminate all existing contracts between him and the government. It was found from the evidence on record that the Contractor had terminated all his contracts as he wanted to contest the elections. The 'No Dues Certificate' and cancellation of registration was on 16.08.1999 and the last date of filing of nomination was 18.08.1999. It was thus held that the contract between the parties was not subsisting even though the contract was discharged by breach on the part of the said Contractor. As the contract stood terminated the term of the contract of curing the defects for a period of one year also did not survive. It was thus held that the said Contractor was not disqualified under provisions of Section 9A of the Act of 1951 from contesting the elections.

21. In the present case, the respondent no. 2 on 20.10.2014 requested for cancellation of his registration as Contractor. Said request has been made after 27.09.2014 which was the last date of filing nominations. Acceptance of that request by the Department is on 22.10.2014. This itself proves that on 27.09.2014 the respondent no. 2 was a registered Contractor with the Department. The decisions thus relied on behalf of respondent no. 2 do not support his case.

In the light of the aforesaid adjudication, Issue Nos. 3, 6 and 7 are answered in favour of the petitioner by holding that the contract in favour of the respondent no. 2 was subsisting on 27.09.2014 by virtue of Clause 20 of the tender document. However, in absence of sufficient material, Issue Nos. 1, 2 and 8 are answered against the petitioner by holding that it has not been proved that the said contracts were subsisting on the date of filing of the nomination form.

22. Once it is found that Contracts (a) and (d) entered into by the respondent no. 2 with the State Government was subsisting on 27.09.2014 which is the last date of filing of the nomination form, the disqualification under Section 9A of the Act of 1951 would operate. In this regard, the ratio of the decision in Konappa Rudrappa Nadgouda (supra) clearly applies to the case in hand and hence, Issue No. 4 is accordingly answered in favour of the petitioner. As a consequence of this finding Issue No. 5 is also answered in favour of the petitioner by holding that the election of the respondent from 62-Sakoli Legislative Assembly Constituency is declared void. Section 100(1)(a) of the Act of 1951 thus renders election of the respondent no. 2 to be void.

23. Accordingly, under Section 98(b) of the Act of 1951, it is held that the election of the respondent no. 2 from 62-Sakoli Legislative Assembly Constituency is declared void. In terms of Section 103 of the Act of 1951, this judgment be communicated to the concerned authorities in the manner prescribed. The Election Petition is accordingly partly allowed. The petitioner is entitled to receive back the amount of security deposit towards costs.

24. For the sake of record, it may be stated that this Election Petition was assigned to this Court on 17.07.2018. In the light of the observations in Mohd. Akbar Versus Ashok Sahu [MANU/SC/0194/2015 : (2015) 14 SCC 519], every effort was made to expeditiously conclude the trial of the proceedings. Accordingly, the election petition stands decided today.

25. At this stage, learned counsel for the respondent no. 2 prays that the effect of this judgment be stayed to enable the respondent no. 2 to raise a challenge to the said judgment. This request is opposed by the learned counsel for the petitioner on the ground that substantial period of the tenure has expired and hence the stay may not be granted. Considering the fact that the remedy of filing a statutory appeal under Section 116A of the Act of 1951 is available to the respondent no. 2, the effect of this judgment is stayed for a period of thirty days from today.


Print Page

No comments:

Post a comment