1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.1760 OF 2010 (Dyaneshwar s/o Pannalal Kambhale and another vs. Maharashtra State Power Generation Company Ltd. and others) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : D.D. SINHA AND F.M. REIS, JJ. DATED : APRIL 15, 2010 Heard Shri Voditel, learned Counsel for the petitioners, and Shri Sambre, learned Government Pleader for the respondent no.2. Shri Voditel, learned Counsel for the petitioners, states that respondent no.6, who is a sitting M.L.A. from Kamptee Constituency, has incurred disqualification in view of provisions of Section 9-A of the Representation of People Act, 1951 since the wife of the respondent no.6, namely, Smt. Jyoti and son Master Sanket became partners of 2 the partnership firm Jagdamba Construction Company (respondent no.5) vide Deed of Reconstruction dated 18.9.2007, which carries on various contract works with respondent nos. 1 to 4. It is submitted that the issue is no more res integra and covered by the decision of the Apex Court in Sewaram vs. Sobaran Singh (AIR 1993 SC 212). The relevant observations of the Apex Court are in paras (22) and (23), which read thus : “22. Mr. Lalit, learned senior Counsel appearing on behalf of the appellant frankly and rightly submitted that in the present case by letter dated 30.1.1990, the contract did not come to an end under the above mentioned three categories, but according to him, the case of the appellant falls under the fourth category of contract coming to an end by breach. We are not satisfied that in the present case the contract came to an end by breach by writing the letter dated 30.1.1990 as sought to be submitted on behalf of the appellant. In the facts of the present case, the contract had not come to an end, but was sought to be continued through Patiram Gupta. It is an admitted fact that Patiram Gupta is the real brother and member of joint Hindu family with Sewaram appellant. Not only that, Patiram was also an attorney holder of Sewaram during the relevant period. The correspondence even after 30.1.1990 has been 3 made in the name of Sewaram appellant though signed by Patiram. In these circumstances, it cannot be believed that Sewaram had put an end to the contract by breach and the conduct of Sewaram and Patiram even prior to and after 30.1.1990 leads to an irresistible conclusion that the contract had not come to an end and was subsisting, thereby incurring a disqualification under Section 9-A of the Act. In case Sewaram wanted to put an end to the contract, in the normal course of behaviour and human conduct he should have gone personally to no less an authority than the Executive Engineer and to have put an end to the contract mutually or in case the concerned Officers were not agreeable to end the contract mutually then he could have taken the step of ending the contract unilaterally by breach taking the risk of damages. The facts of the present case lead us to the conclusion that the appellant never intended nor in fact put an end to the contract, but continued with the contract through the proxy of his real brother, Patiram. 23. In the circumstances mentioned above, we are in agreement with the findings recorded by the High Court in this regard that the contract with the PWD was subsisting on the date of filing the nomination and the date of scrutiny of the nomination papers and the appellant thus incurred a disqualification for contesting the election of Morena Assembly Constituency in the State of Madhya Pradesh.” It is, therefore, contended by the learned Counsel for 4 the petitioners that the respondent no.6, in view of the law laid down by the Apex Court, has incurred disqualification and, therefore, at least respondent no.5 firm should not be permitted to run the business in the constituency of respondent no.6 M.L.A. till the term of respondent no.6 is over. Shri Sambre, learned Government Pleader for the respondent no.2, states that facts of the case, which was before the Apex Court, are different than the one in the case in hand. The question, which was before the Apex Court, was whether the candidate incurred disqualification for contesting the election of Morena Assembly Constituency in the State of Madhya Pradesh under Section 9-A of the said Act. It is contended that since there was evidence available on record to show that the appellant in the said case never intended nor in fact put an end to the contract, but continued with the contract through the proxy of his real brother Patiram, the Apex Court confirmed the finding recorded by the High Court. We have considered the rival contentions 5 of the learned Counsel for the parties and perused the aforesaid decision of the Apex Court. So far as the case in hand is concerned, there is absolutely no evidence to substantiate the allegations made against respondent no.6 by the petitioners except the averment made in the petition and, therefore, it is not possible to conclude that respondent no.6 wanted to continue the contract through the proxy of his wife and son and would incur disqualification under Section 9-A of the said Act. So far as case in hand is concerned, the facts are quite different and, therefore, for the reasons stated hereinabove, decision of the Apex Court in the case of Sewaram (cited supra), in our view, is of no help to the petitioners. The petition suffers from lack of merit and hence, the same is dismissed. JUDGE JUDGE khj