Case: Abdul Rahiman Khan Vs. Sadasiva Tripathi

Engineer. 8. In February 1966 the appellant requested cancellation of the contract. The Executive Engineer was willing to accept the offer of cancellation and made an endorsement in that behalf, but nothing was done thereafter. Harihar Bisoi was apparently asked to take up the work "at the current schedule of rates", but even thereafter the contract with the appellant was not treated as cancelled. 9. It is true that by virtue of the Explanation to S. 9-A of the Representation of the People Act, 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 Government has not performed its part of the contract either wholly or in part. In the present case the contract was not wholly performed by the appellant, and unless he had completed the contract or showed that there was determination by mutual assent of the contract, the appellant cannot claim that there was no subsisting contract at the date of the filing of the nomination paper. By letter written by the appellant on July 22, 1966, Ext. C, the appellant made a request for extension of time by six months to enable him to complete the work and by his letter Ext. D dated December 20, 1966 he requested the Superintending Engineer not to cancel the contract or call for new tenders. This conduct of the appellant clearly suggests that he did not treat the contract as cancelled, nor is there any clear evidence to show that the authorities had treated the contract as cancelled. The High Court was, therefore, right in holding that the case did not fall within the explanation to S. 9-A of the Representation of the People Act and there was no evidence of determination of the contract by mutual agreement. 10. Counsel for the appellant contended that the contract for execution of works was between the State and the appellant and Art. 299 of the Constitution applied thereto, and since the contract was not shown to be executed in the name of the Governor, and by an authority competent to execute the contract on behalf of the Governor, the disqualification under S. 9-A did not apply. By Cl. (1) of Article 299 all contracts made in the exercise of the executive power of the State must be expressed to be made by the Governor of the State, and all such contracts made in the exercise of that power must be executed on behalf of the Governor by such persons and in such manner as he may direct or authorise. It is true that agreements were executed by the Executive Engineer in Form K-2 but no final contracts were executed in Form F-2. The appellant proceeded on the footing that there was a binding contract under which he had undertaken the work of construction for the State, and the State allowed work and had offered to pay him for the work done at the rates set out in Form K-2. The appellant could not by virtue of Art. 299 sue in a civil court on the agreement in Form K-2 for compensation for breach of contract. But we are unable to hold that the appellant was not disqualified under S. 9-A of the Representation of the People Act merely because the contracts were not enforceable against the State because of Art. 299 (1) of the Constitution. In Chaturbhuj Vithaldas Jasani v. Moreshwar Parashram, 1954 SCR 817 = (AIR 1954 SC 236 ) Bose J., in dealing with a case of disqualification under the Representation of the People Act 1951, resulting from a contract with the State which is not executed in the form and manner prescribed by Art. 299, observed:"It, may be that Government will not be bound by the contract in that case, but that is a very different thing from saying that the contracts as such are void and of no effect. It only means that the principal cannot be sued; but we take it there would be nothing to prevent ratification, especially if that was for the benefit of Government. * * * * * We accordingly hold that the contracts in question here are not void simply because the Union Government could not have been sued on them by reason of Article 299 (1)." Undoubtedly for breach of the terms of a contract not executed in the manner prescribed by Article 299 (1) a suit for relief in a civil court will not lie, but on that account it cannot be said that a contract for execution of works undertaken by a person though not executed in manner prescribed by Article 299, but which is treated by both the parties thereto as binding will not operate as a disqualification. In a recent judgment of this Court in Laliteshwar Prasad Sahi v. Bateshwar Prasad, (1966) 2 SCR 63 = (AIR 1966 SC 580 ), this Court held that where an agreement for execution of work had been entered into between the State Government and a private person by correspondence and the State Government has ratified the agreement and has treated the relation between the parties as contractual and has accepted liability arising under the terms of the agreement as if it were a pending contract, a disqualification under the relevant provisions of the Representation of the People Act results. 11. As already pointed out, the appellant had commenced execution of the work but had not completed it. Payment for the work done was not made to the appellant. The contract was not determined by mutual agreement nor was it abandoned. 12.The contract resulting from the acceptance of his tender though not enforceable by suit against the State Government, because it did not comply with Article 299, must still be regarded as disqualifying the appellant under the Representation of the People Act from standing as a candidate for election to the State Legislature.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. It is true that by virtue of the Explanation to S. 9-A of the Representation of the People Act, 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 Government has not performed its part of the contract either wholly or in part. In the present case the contract was not wholly performed by the appellant, and unless he had completed the contract or showed that there was determination by mutual assent of the contract, the appellant cannot claim that there was no subsisting contract at the date of the filing of the nomination paper. By letter written by the appellant on July 22, 1966, Ext. C, the appellant made a request for extension of time by six months to enable him to complete the work and by his letter Ext. D dated December 20, 1966 he requested the Superintending Engineer not to cancel the contract or call for new tenders. This conduct of the appellant clearly suggests that he did not treat the contract as cancelled, nor is there any clear evidence to show that the authorities had treated the contract as cancelled. The High Court was, therefore, right in holding that the case did not fall within the explanation to S. 9-A of the Representation of the People Act and there was no evidence of determination of the contract by mutual agreement10. Counsel for the appellant contended that the contract for execution of works was between the State and the appellant and Art. 299 of the Constitution applied thereto, and since the contract was not shown to be executed in the name of the Governor, and by an authority competent to execute the contract on behalf of the Governor, the disqualification under S. 9-A did not apply. By Cl. (1) of Article 299 all contracts made in the exercise of the executive power of the State must be expressed to be made by the Governor of the State, and all such contracts made in the exercise of that power must be executed on behalf of the Governor by such persons and in such manner as he may direct or authorise. It is true that agreements were executed by the Executive Engineer in Form K-2 but no final contracts were executed in Form F-2. The appellant proceeded on the footing that there was a binding contract under which he had undertaken the work of construction for the State, and the State allowed work and had offered to pay him for the work done at the rates set out in Form K-2. The appellant could not by virtue of Art. 299 sue in a civil court on the agreement in Form K-2 for compensation for breach of contract. But we are unable to hold that the appellant was not disqualified under S. 9-A of the Representation of the People Act merely because the contracts were not enforceable against the State because of Art. 299 (1) of the Constitution11. As already pointed out, the appellant had commenced execution of the work but had not completed it. Payment for the work done was not made to the appellant. The contract was not determined by mutual agreement nor was it abandoned12.The contract resulting from the acceptance of his tender though not enforceable by suit against the State Government, because it did not comply with Article 299, must still be regarded as disqualifying the appellant under the Representation of the People Act from standing as a candidate for election to the State Legislature.