1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (Ordinary Original Civil Jurisdiction) Tuesday, the 2nd day of December 2008 THE HON'BLE MR. JUSTICE M. JEYAPAUL Election Petition No.2 of 2006 P.H. Paul Manoj Pandian 120, Govindaperi, Karisalpatti, Thiruviruthanpulli Post, Cheranmahadevi, Tirunelveli District. ..Petitioner. Vs. 1. Mr. P. Veldurai S/o. M. Papanasa Perumal 5/45-B, Kanganakulam, Thiruviruthampulli, Cheranmahadevi (Via), Tirunelveli District. 2. The Returning Officer,(**) 220, Cheranmahadevi, Assembly Constituency, R.D.O. Cheranmahadevi, Tirunelveli District. (**) R2 has been struck off from the array of respondents as per the order of this Hon'ble Court dt.29-09-2006 in O.A.No.771 of 2006. ...Respondents. Election Petition praying that this Hon'ble Court be pleased to:- (a) To declare the Election of the returned candidate namely the 1st Respondent from 220-Cheranmahadevi Assembly Constituency in the Election held on 08-05-2006 in which results were declared on 11-05-2006 to the Tamil Nadu Legislative Assembly as null and void. (b) Direct the Respondents to pay the costs of the petition. https://hcservices.ecourts.gov.in/hcservices/ 2 The above Election Petition coming on for hearing before this Court on various dates and finally on 29-10-2008 and upon hearing the arguments of Mr. T.V. Ramanujam, Senior Advocate for M/s.P.N. Prakash and others and of Mr. B.S. Gnanadesikan, Senior Counsel, Counsel for 1st Respondent and the 2nd Respondent has been struck off from the array of respondents and upon reading the Election Petition filed by the Election Petitioner and Counter Affidavit filed by the 1st Respondent and other exhibits therein referred to and upon perusing the evidence adduced therein, and having stood over for consideration till this date and coming on this day before this court for orders in the presence of the said Advocates for the parties hereto and this Court having observed that the Election Petitioner failed to establish that there was subsistence of contract in favour of the returned candidate as on the date of filing nomination and the termination of contract also was in accordance with G.O.Ms.NO.4682 Public Works Department dated 16-11-1951 and the Election Petitioner also failed to establish any other ground to set aside the election of the returned candidate. IT IS ORDERED AS FOLLOWS:- That the Election Petition No.2 of 2006, be and is hereby dismissed. 2.That the Petitioner herein, shall pay a cost of Rs.2000/- (Rupees two thousand only) to the respondent. WITNESS THE HONOURABLE THIRU ASOK KUMAR GANGULY, CHIEF JUSTICE, HIGH COURT AT MADRAS AFORESAID, THIS THE 2nd DAY OF DECEMBER 2008. Sd/- ASSISTANT REGISTRAR (Original Side-II) /Certified to be true copy/ Dated at Madras this is the day of 2008. Court Officer(O.S) From 25th day of September 2008 the Registry is issuing the copies of the orders/Judgments/Decrees in this format. https://hcservices.ecourts.gov.in/hcservices/ 3 NK-03-12-2008 ELECTION PETITION NO.2 OF 2006 ORDER ------ DATED: 02-12-2008 THE HONOURABLE MR.JUSTICE M. JEYAPAUL FOR APPROVAL: APPROVED ON : Copy to:- 1. The Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi 110 001. 2. The Chief Electoral Officer, And Secretary to Government, Public (Elections-IV) Department, Secretariat, Fort St. George, Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/ 4 IN THE HIGH COURT OF JUDICATURE AT MADRAS (Ordinary Original Civil Jurisdiction) Tuesday, the 2nd day of December 2008 THE HON'BLE MR. JUSTICE M. JEYAPAUL Election Petition No.2 of 2006 P.H. Paul Manoj Pandian 120, Govindaperi, Karisalpatti, Thiruviruthanpulli Post, Cheranmahadevi, Tirunelveli District. ..Petitioner. Vs. 1. Mr. P. Veldurai S/o. M. Papanasa Perumal 5/45-B, Kanganakulam, Thiruviruthampulli, Cheranmahadevi (Via), Tirunelveli District. 2. The Returning Officer,(**) 220, Cheranmahadevi, Assembly Constituency, R.D.O. Cheranmahadevi, Tirunelveli District. (**) R2 has been struck off from the array of respondents as per the order of this Hon'ble Court dt.29-09-2006 in O.A.No.771 of 2006. ...Respondents. Election Petition praying that this Hon'ble Court be pleased to:- (a) To declare the Election of the returned candidate namely the 1st Respondent from 220-Cheranmahadevi Assembly Constituency in the Election held on 08-05-2006 in which results were declared on 11-05-2006 to the Tamil Nadu Legislative Assembly as null and void. (b) Direct the Respondents to pay the costs of the petition. https://hcservices.ecourts.gov.in/hcservices/ 5 The above Election Petition coming on for hearing before this Court on various dates and finally on 29-10-2008 and upon hearing the arguments of Mr. T.V. Ramanujam, Senior Advocate for M/s.P.N. Prakash and others and of Mr. B.S. Gnanadesikan, Senior Counsel, Counsel for 1st Respondent and the 2nd Respondent has been struck off from the array of respondents and upon reading the Election Petition filed by the Election Petitioner and Counter Affidavit filed by the 1st Respondent and other exhibits therein referred to and upon perusing the evidence adduced therein, and having stood over for consideration till this date and coming on this day before this court for orders in the presence of the said Advocates for the parties hereto, THE COURT MADE THE FOLLOWING ORDER:- The petitioner, who lost the General Election to Cheranmahadevi Assembly Constituency filed this petition as against the returned candidate, the respondent herein and the Returning Officer, Cheranmahadevi, seeking for a declaration that the election of the returned candidate, the respondent herein from Cheranmahadevi Assembly Constituency in the election held on 8.5.2006 to the Tamil Nadu Legislative Assembly as null and void. 2. Subsequently, the Returning Officer, Cheranmahadevi Assembly Constituency, who was figuring as second respondent, has been struck off from the array of respondents vide order dated 29.9.2006 in O.A.No.771 of 2006. 3. The Returning Officer, Cheranmahadevi, in pursuance of the notification issued by the Government of Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ 6 on 3.3.2006, called for nominations for Cheranmahaadevi Assembly Constituency. The date of filing of nominations commenced on 13.4.2006 and the last date for filing nomination was fixed on 20.4.2006. The date of scrutiny was fixed on 21.4.2006 for the election that was to be held on 8.5.2006. The petitioner and the respondent filed nominations on 17.4.2006 and the same was accepted by the Returning Officer, Cheranmahadevi. The respondent was declared elected on 11.5.2006. 4. The sum and substance of the averment found in the petition is as follows:- The respondent, who is the returned candidate, was disqualified to be chosen to fill any seat in the Legislative Assembly of the State of Tamil Nadu under section 9A read with section 100(1)(a) of the Representation of the People Act, 1951 as the respondent had a subsisting contract with the Government of Tamil Nadu on the date of election and also subsequently. The contractors shall be permitted to terminate their subsisting contract only when persons acceptable to the Chief Engineer are available and are willing to enter into a contract to execute the works under the existing terms and conditions without any loss to the Government as per G.O.Ms.No.4682 Public Works Department dated 16.11.1951. There should be a final and complete settlement of rights and liabilities between the Government and the existing https://hcservices.ecourts.gov.in/hcservices/ 7 contractor. The respondent is having subsisting contracts as a registered contractor with the Tamil Nadu State Highways Department regarding the works with the Divisional Engineer(H), NABARD and Rural Roads, Nagercoil. There are also subsisting contracts the respondent has with the Divisional Engineer, Tirunelveli. Those contracts have not been terminated till date as there is no contractor entrusted to do the balance work which is pending execution by the respondent . The petitioner submitted objections before the Returning Officer seeking to reject the nomination of the respondent. But, the Returning Officer rejected the petitioner's objections and improperly accepted the nomination of the respondent by misconstruing the objections. The subsisting contracts the respondent had were not terminated in accordance with G.O. Ms.No.1682 Public Works Department dated 16.11.1951. The respondent was under the obligation to perform the contracts since no acceptable person as on the date of the nomination, scrutiny and election is available to perform the balance works without any loss to the Government. The respondent was removed from the list of State Level Contracts maintained by the Superintending Engineer, Highways, Project Circle, Madurai. But, the latter has stated that pending works must be terminated in terms of the aforesaid Government Order and termination of contracts must be obtained from different Highways Division. Removal of the https://hcservices.ecourts.gov.in/hcservices/ 8 name of the respondent from the list of contractors cannot be construed as termination of contracts as long as the contracts are not specifically terminated in terms of the aforesaid Government Order. The Chief Engineer has clarified that no substitute has been accepted as required under the aforesaid Government Order even as on 20.6.2006. Only when the substitute contractor is accepted, would the contract come to an end by mutual consent. There is no full and final settlement between the respondent and the Government as on date. Therefore, the petitioner seeks for the aforesaid declaration. 5. The respondent has averred to in the counter affidavit filed by him as follows:- The respondent was not having any subsisting contract as on the date of his nomination as well as on the date of scrutiny of the nomination paper. It is denied that the procedures contemplated under the said Government Order have to be strictly followed before termination of the contract for contesting the election. Even assuming without conceding that the conditions enumerated in the said Government Order is not followed, that will not nullify the termination of the contract, if any, made. The Divisional Engineer (Highways) NABARD and Rural Roads, Nagercoil terminated the contract on 17.4.2006 and freezed and forfeited the deposits available with the Divisional Engineer (Highways) NABARD and Rural Roads, Nagercoil for https://hcservices.ecourts.gov.in/hcservices/ 9 crediting into Government account. No agreement was executed by the respondent with the Divisional Engineer (Highways) NABARD and Rural Roads, Tirunelveli and the work order was cancelled. Therefore, there is no question of any subsisting contract as far as the works relating to Tirunelveli Division is concerned. Only a procedure meant to be followed by the subordinate officials is contemplated in G.O.Ms.No.4682 Public Works Department dated 16.11.1951. Even assuming without conceding that the said Government Order was not followed, that will not nullify the termination order issued by the Divisional Engineer (Highways) NABARD and Rural Roads, Nagercoil on 7.4.2006. Even otherwise, the said procedure has been followed while terminating the contract. The respondent is no longer a registered contractor with the Tamil Nadu State Highways Department. Nor does he have any subsisting contract in respect of the works referred to in the Election Petition. The balance work not executed by the respondent was completed by the substitute contractor S.Rajagopalan on the same terms and conditions in which the respondent agreed to execute the work initially without any loss to the Government. It is denied that there was no alternative contractor nominated by the respondent. Even though the disqualification has to be reckoned only on the date of scrutiny, even on the date of nomination, there was no disqualification as far as the respondent is concerned. https://hcservices.ecourts.gov.in/hcservices/ 10 The appointment of the substitute contractor on the same terms and conditions is the job of the Department. In fact, no payment was made to the respondent by the Governemnt either by cash or by cheque after 17.4.2006. Therefore, the respondent would pray that the Election Petition may be dismissed. 6. The following issues were framed for determination:- "1. Whether there was subsistence of contract in favour of the returned candidate and whether the election petitioner has proved the same. 2. Whether there are any other grounds to set aside the election. 3. Even if there is a termination as claimed by the returned candidate, whether it was in accordance with G.O.Ms.No.4682, PWD, dated 16.11.1951." 7. On the side of the petitioner, P.W.1 to P.W.4 were examined and Exhibits P1 to P21 were marked. On the side of the respondent, R.W.1 and R.W.2 were examined and Exhibits R1 to R21 were marked. Exs.C1 to C32 were marked at the instance of the Court. 8. Issues 1 to 3:- Submission by Senior Counsel for the Election Petitioner:- The contract of the respondent with the Government was subsisting on the date of filing nomination as the same was https://hcservices.ecourts.gov.in/hcservices/ 11 not terminated in accordance with G.O.Ms.No.4682 Public Works Department dated 16.11.1951. The aforesaid Government Order issued by the Governor of the State, in exercise of his executive powers under Articles 154 and 166 of the Constitution of India, is a law within the meaning of Article 13(3)(a) of the Constitution of India. The respondent cannot putforth the case beyond the scope of the pleadings that he has terminated the contract by abandonment or by breach in order to contest the elections. The respondent and the Divisional Engineer, who was examined as RW2 cannot say that the contract was terminated between themselves as per Ex.P17 and that therefore, there was no subsisting contract. The contract dated 29.4.2005 (Ex.C11) was entered into by the respondent with the Superintending Engineer, Tirunelveli who was examined as PW4. As no contract was entered into by the respondent with the Divisional Engineer, who is admittedly an Officer subordinate to the Superintending Engineer, the Superintending Engineer has no authority to cancel the same. RW2, who passed the order of termination, Ex.P17, has categorically admitted that the power to cancel a contract entered into by the State with the contractor who proposed to contest the election vests with the Chief Engineer. PW3, the Superintending Engineer, Projects Circle, Madurai has also specifically stated that the competent authority for approving the substitute contractor https://hcservices.ecourts.gov.in/hcservices/ 12 for the purpose of cancellation of the contract as per G.O. Ms.No.4682 Public Works Department dated 16.11.1951 is only the Chief Engineer, NABARD and Rural Roads. A substitute contractor acceptable to the Chief Engineer should be fixed beforeever the contract is mutually terminated as per the aforesaid Government Order. The Chief Engineer has accepted the substitute contractor P.Rajagopal as per the recommendation of the superintending Engineer only on 26.6.2006, well after the result of the election was declared on 11.5.2006. The fresh agreement with P.Rajagopal was entered into only on 4.7.2006 as evidenced by Ex.C16. The rights and liabilities of the respondent with the Government were not settled even upto the date of election that was held on 8.5.2006. A sum of Rs.2,02,341/= was kept in class 4 deposit as per Ex.C29 in order to make good any loss that may be occasioned to the Government on account of the breach that may be committed by the alternative contractor Rajagopal. The respondent had the obligation to the Government for proper discharge of the work by the alternative contractor. Subsequent ratification under Ex.P19 on 26.4.2006 by PW4 does not cure the defect in filing the nomination by the respondent on 17.4.2006. The subsistence or otherwise of the contract should be tested from the point of law and not from the point of view of the respondent or the Divisional Engineer. RW1 and the Divisional Engineer, RW2 had colluded to create https://hcservices.ecourts.gov.in/hcservices/ 13 an order in the nature of Ex.P17. When there was no emergency, the respondent has put pressure on RW2 to execute Ex.P17. RW2 should have atleast mentioned in Ex.P17 that the order passed by him was subject to the ratification of the Superintending Engineer. The Divisional Engineer, Nagercoil, in his letter dated 17.4.2006 (Ex.P5), has admitted that the three works in question were subsisting as on 17.4.2006. Application of Rajagopal for renewing his name in the list of registered contractors was made only on 18.4.2006 and the renewal was made on 1.6.2006. The petitioner has made out a case for declaration of the election of the returned candidate as null and void. 9. Submission of Senior Counsel for the respondent:- The respondent had no subsisting contract with the Government not only on the date of scrutiny but also on the date of nomination itself. Therefore, the respondent did not suffer disqualification under section 9A read with 100 (1)(a) of the Representation of the People Act. The respondent requested the Divisional Engineer on 10.4.2006 to terminate the contract. The contract was terminated absolutely and the security deposit was forfeited on 17.4.2006. The Superintending Engineer, Project Circle, Madurai also removed his name from the list of registered contractors by his proceedings dated 12.4.2006. G.O.Ms.No.4682 Public Works Department dated 16.11.1951 https://hcservices.ecourts.gov.in/hcservices/ 14 need not be adhered to as it is only an instruction to the Department officials. When the contract has been terminated by the Divisional Engineer, the administrative Government Order cannot nullify the said termination. The substitute contractor who was willing to do the balance work on the same terms and conditions without any loss to the Government gave consenting letter on 17.4.2006 itself and was made available as per the aforesaid Government Order. Even if there was any obligation on the part of the respondent to be discharged by making available a willing substitute contractor, the same stands discharged. The authority of the Divisional Engineer to terminate the contract was not under challenge in the Election Petition. Therefore, the petitioner cannot traverse beyond the scope of the Election Petition and project a case without pleadings that the Divisional Engineer lacks jurisdiction to terminate the contract. No amount of evidence or submissions on the side of the petitioner can be entertained when such a material fact was not pleaded by the petitioner. As per the Government Order, the acceptance of the alternative contractor and not the termination of the contractor by the Chief Engineer is required. The Divisional Engineer has categorically denied the suggestion made to him that he has no power to terminate the contract. The further statement of the Divisional Engineer in a confused state that it is only the https://hcservices.ecourts.gov.in/hcservices/ 15 Chief Engineer, NABARD, Highways and Rural Roads, who has got power to cancel a contract, cannot be given much weight. Though the petitioner has raked up the contract work the respondent had in Tirunelveli Division, the same was dropped during the course of argument and he chose to confine himself to the contract work of the respondent in Nagercoil Division. The subsequent events would make it clear that the substitute contractor had successfully completed the work without any loss to the Government and certificate of completion was also issued to him. The order of termination of contract passed by the Divisional Engineer, Nagercoil was subsequently ratified by the Superintending Engineer, Tirunelveli and therefore, the ratification takes effect from the date of termination of the contract. Even otherwise, there is a termination by breach as the respondent has walked out of the contract between himself and the State. The respondent has produced documents to show that full and final settlement of the dues was already made. There is nothing on record to show that subsequent to the date of nomination, the respondent received any amount from the Government with respect to the performance of the contract. Therefore, the Election Petition deserves dismissal. Ground not pursued: 10. In the Election Petition, the petitioner has contended that there was subsisting contract between the https://hcservices.ecourts.gov.in/hcservices/ 16 respondent and the Divisional Engineer, Tirunelveli with respect to the contract work relating to Sivanarkulam- Iyanarkulam Road, Therkupatti Road and Valuthur-Senkulam Road. Specific plea was taken by the petitioner that those three contracts were not terminated and the balance work was yet to be executed. On the basis of the letter dated 10.4.2006 marked as Ex.R1, the Superintending Engineer, Tirunelveli has passed an order on 11.4.2006 marked as Ex.R3. Though the tender submitted by the respondent with respect to the work relating to Tirunelveli Division was accepted by him, the respondent had not come forward to execute any contract. Therefore, as requested by the respondent, the acceptance of the tender submitted by him relating to the work in Tirunelveli Division stood annulled. On the basis of the letter dated 12.4.2006 marked as Ex.R2, the Superintending Engineer, Projects Circle, Madurai had removed the name of the respondent from the approved contractors list. Therefore, it is found that as far as the work relating to Tirunelveli Division is concerned, the respondent had not entered into any contract with the Government and the acceptance of the tender by the Superintending Engineer, Tirunelveli was also annulled and his name was also removed by the Superintending Engineer, Projects Circle, Madurai from the list of registered contractors. In view of the above facts and circumstances, the petitioner has given up his https://hcservices.ecourts.gov.in/hcservices/ 17 challenge made in the suit with respect to the contract work of the respondent relating to Tirunelveli Division. Facts not pleaded: 11. An Election Petition shall contain a concise statement of the materials on which the petitioner bases his claim. The proceedings in Election Petitions are statutory in nature. Not substantial compliance, but, strict compliance of section 86(1) of the Act is warranted. Violations of such strict compliance would entitle dismissal of the Election Petition itself. 12. The Election Petitioner has contended in the Petition that the contract the respondent had with the Government was not terminated as per G.O.Ms.No.4682 Public Works Department dated 16.11.1951 because the alternative contractor to perform the balance work introduced by the respondent was not available for acceptance to the Chief Engineer. On 17.4.2006, the date on which nomination was submitted by the respondent, there was no full and final settlement between the respondent and the Government. Therefore, the respondent incurs the wrath of disqualification as per the mandates of section 9A of the Representation of the People Act, 1951, it has been contended. 13. It is pertinent to note that the petitioner never set up a plea that there was no authority for the Divisional Engineer, Nagercoil to terminate the contract https://hcservices.ecourts.gov.in/hcservices/ 18 nor was any plea taken that there was collusion between the respondent and the Divisional Engineer who was examined as RW2. He has not contended in the Election Petition that the respondent mounted pressure on the Divisional Engineer, Nagercoil who yielded such pressure. 14. The respondent made a request under Ex.C18 dated 10.4.2006 to the Divisional Engineer, RW2 seeking for mutual termination of the contract. He had not expressed his intention to abandon the contract or breach the contract unilaterally both before the Returning Officer and also before this court. In the counter filed by him, the respondent has pleaded that there was termination of contract by mutual consent. 15. The Supreme Court, in MAKHAN LAL BANGAL v.MANAS BHUNIA ((2001) 2 SCC 652), has held as follows:- "The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The https://hcservices.ecourts.gov.in/hcservices/ 19 evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided." 16. In this case, no issue was framed as to whether there was any authority for the Divisional Engineer to terminate the contract or whether there was any collusion between the respondent and the Divisional Engineer, Nagercoil or whether the order of termination of the contract passed by the Divisional Engineer, Nagercoil is the outcome of the pressure mounted by the Divisional Engineer, Nagercoil. 17. The Supreme Court in SANTOSH YADAV v. NARENDER SINGH ((2002) 1 SCC 160) has held as follows:- "A civil trial more so when it relates to https://hcservices.ecourts.gov.in/hcservices/ 20 an election dispute, where the fate not only of the parties arrayed before the court but also of the entire constituency is at a stake, the game has to be played with open cards and not like a game of chess or hide and seek. An election petition must set out all material facts wherefrom inferences vital