Case: Konappa Rudrappa Nadgouda Vs. Vishwanath Reddy &amp; Anr

2. The first respondent was a partner in a firm known as the Yadagiri Construction Company, Yadagiri. This firm held several contracts from the Mysore Government. In this appeal, we are concerned with two contracts only which were the construction of (1) a road known as "Nalwar Sonthi Road" in Gulbarga Division for a distance of four miles and (2) a dispensary building 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 election of the first respondent void. The election petitioner claimed that he was entitled to be declared elected after considering 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 therefore not affected.3. 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 disqualification of candidates on this ground. Under Sec. 9A of the Representation of the People Act, 1951 it is provided asperson 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 execution of any works undertaken by that Government.Explanation: For the purpose of this section 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.It may be mentioned here that previously the section did not contain the Explanation. In Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram, 1954 SCR 817  = (AIR 1954 SC 236  ), the existence of the liability on the part of the Government to pay for a fully executed contract was held to be a disqualification. It appears that Parliament thought 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 the 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 observations in the ruling which in our opinion must be taken into 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 narration of the facts.5. As has been stated 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 separate 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 contracts 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 items which the firm had to complete. They are conveniently described as items 1 to 7 and 8 to 12. The case of the election petitioner was that although Items 1 to 7 had been completed, Items 8 to 12 remained to be completed. In the Schedule to the contract or the building of the dispensary, a number of items were included in the Schedule. Of course, 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 contracts as a whole were substantially performed and, therefore, there was no bar to the candidature of the 1st respondent. The High Court also held that although these agreements contained a clause for maintenance and repairs over a period of time after the completion of the work of construction, that did not make the contracts to subsist and, therefore, that too was not a disability.

Reasoning:
8. Now it is agreed on both sides that Items 1-7 were duly completed. The dispute is with regard to Items 8 to 12. Nomination to the Assembly had to be filed on 20th January, 1967 at the latest. 21st January was fixed for scrutiny of the nomination papers and the election was to follow in the month of February. 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 Executive 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 turn. He obtained cancellation of these certificates from the Executive Engineer on the following day. The Executive Engineer asked the Assistant Engineers to state whether the work had been completed and the Assistant Engineers thereupon gave the certificate that Items 8-12 of the first contract were not complete. We have so far described the contract dealing with thePersonal Assistant explained that he had issued the certificates because they were urgently required for election purposes and because the Assistant Engineer under whose supervision the construction of the road was taking place had reported completion of the work. The Executive Engineer, however, verified this again from the Assistant Engineer and found that Item 8-12 remained to be completed. Mr. Narasaraju complains of the conduct of the Executive Engineer by saying that he did not visit the spot to see for himself whether the completion had been made or not. He states that in Ex. P-11 in which the completion was reported on 18th January, 1967, there in no mention of Items 8-12 and it is different in language from Ex. C-1 in which Items 8-12 are 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 maintained that these items were in fact not completed before the election took place. We are satisfied that although the construction of the road was complete, the additional items which are 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.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. The question is whether the contract can be said to be subsisting in view of this clause. Both sides referred us to Hudsons Building and Engineering Contracts. In one passage, Hudson regarded such a clause as in the nature of a repair clause. But Hudson was not dealing 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 law. Now the contract must be said to subsist if a portion of it is required to be performed at any time, because so long as the contract has not been discharged, by full performance, it must be taken to subsist. Mr. Narasaraju contends that the phrase "contract for the execution of the work" shows that it is the execution 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 arose in the case to which we referredthese observations in the context of construction of buildings and roads, it is obvious 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 possible to describe the action taken 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 repair defects or re-do something which he had not properly done, we think this matter must fall within Section 9A of the Representation of the People Act.This is not a case like the supply of a refrigerator which after giving service for some time goes out of order and something has to be done to replace a part which is defective. 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 performed and under clause 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 contracts had been fully performed and therefore Section 9A did not apply.