P.H.Paul Manoj Pandian vs P.Veldurai

2. The relevant facts emerging from the record of the case are as under: -

Thus, according to the respondent, it was not correct to say that any contract was subsisting as far as the works relating to Tirunelveli Division was concerned. After mentioning that only a procedure as mentioned in G.O. dated November 16, 1951, was left to be followed by the subordinate officials of the Government, it was stated that non-observance 7 of the said G.O. would not nullify the order terminating the contract issued by the Divisional Engineer on April 17, 2006. The respondent maintained that he was no longer a registered contractor with the Tamil Nadu State Highways Department nor was he having any subsisting contract in respect of the works referred to in the Election Petition and, therefore, his election was not liable to be set aside. It was further stated in the reply that balance work not executed by him was completed by the substitute contractor S. Rajagopalan on the same terms and conditions, which were agreed upon by him with the Government to execute the works concerned and thus no loss was suffered by the Government. The averment made in the Election Petition that the respondent had not made any alternative arrangement for another contractor was emphatically denied by him. By filing reply, the respondent had demanded the dismissal of the 8 Election Petition.

5. On perusal of the election petition filed by the appellant, the learned Judge held that it was pertinent to note that the appellant had never set up a plea that the Divisional Engineer, Nagercoil had no authority to terminate the contract entered 9 into with the respondent nor any plea was raised to the effect that there was collusion between the respondent and the Divisional Engineer, who was examined as RW-2 nor was it averred in the Election Petition that the respondent had mounted pressure on the Divisional Engineer, Nagercoil to terminate the contract and the Divisional Engineer had yielded to such pressure. Having noticed the above mentioned defects in the pleadings, the learned Judge observed that in view of the failure of the appellant to plead necessary facts and raise contentions, it was not necessary for him to decide the issues regarding which no averments were made in the Election Petition. The learned Judge took into consideration the evidence adduced by the parties and the principle laid down by this Court in Competent Authority vs. Bangalore Jute Factory and others (2005) 13 SCC 477, wherein it is held that where a statute requires a particular act to be done in a particular manner, the act has to be done 1 in that manner alone and in no other manner and concluded that the G.O. dated November 16, 1951, issued by the Government of Tamil Nadu, was only an administrative instruction but not a statute enacted by the Legislature and, therefore, the ratio laid down in the above mentioned decision was not applicable to the facts of the case. The learned Judge held that it was rightly pointed out that the Government Order dated November 16, 1951 contained only administrative instructions and while communicating the said Government Order to the Superintending Engineers and Divisional Engineers, it was specifically mentioned that the said administrative instruction was for information and guidance. What was deduced by the learned Single Judge was that the Government Order did not say that the Chief Engineer was the authority to terminate the contract of a contractor, entered into with the Government, nor the Government Order stated that an order of termination could be issued 1 only when Chief Engineer had accepted a person, who was available and was willing to enter into a contract on the same terms and conditions. The learned Judge was of the opinion that a contractor, who wanted to terminate his contract, had nothing to do with the administrative instructions issued by the Government Order dated November 16, 1951.

After referring to Exhibit C-11 it was held by the learned Judge that the agreements were entered into between the Governor of Tamil Nadu on the one hand and the respondent on the other and on behalf of the Governor, Superintending Engineer, NABARD had signed the agreement. The learned Judge found that when the Sub-Division was brought under the direct domain of the Superintending Engineer, the clause in agreement entered into between the parties that in the event of transfer of work to another circle/division/sub-

3. The contractor who is allowed to back out of his contract should do so at his own risk and should be made liable to make good any loss to the Government arising out of the necessity to enter into a fresh contract.

The proceedings of the Divisional Engineer (H) NABARD and Rural Roads, Nagercoil dated April 17, 2006 mention that the contracts were absolutely terminated as per Government Order dated November 16, 1951 and the respondent was informed that the works entrusted to him would be got executed at his risk and cost and that orders for entrustment of the works to the new contractor would be issued separately. It was also mentioned in the said letter that the deposits available in favour of the respondent for the works, which were determined, were freezed and forfeited for crediting the same into Government account. Thereafter, the Divisional Engineer had addressed a communication dated April 18, 2006 to the 5 Superintending Engineer informing that as the respondent was desirous to contest Assembly election and had requested to cancel the contracts in the present position and issue termination certificate for the said works, he had conducted proceedings for cancelling the contract on April 17, 2006. By the said letter the Divisional Engineer had requested the Superintending Engineer to accord ratification to the order dated April 17, 2006 for cancelling the contracts. The record shows that thereafter by an order dated April 26, 2006 the Superintending Engineer (N) NABARD and Rural Roads, Tirunelveli had ratified the order dated April 17, 2006 by which the Divisional Engineer (H) NABARD had terminated the contracts entered into by the respondent with the Government. The Superintending Engineer had informed the respondent that the Divisional Engineer was competent to terminate the contracts. However, it is an admitted position that the contracts were 5 entered into by the respondent with the Superintending Engineer and under the terms and conditions of the contracts, the Superintending Engineer was competent to terminate the contracts.

6. In view of the above mentioned conclusions and findings, the learned Judge has dismissed the Election Petition by judgment dated December 2, 2008, which has given rise to the instant appeal.

13. One of the accepted principles of interpretation is as to how those, who are conversant with the Government Order and are expected to deal with the same, construe and understand the Order. The opinion expressed by the Government officials, who are expected to have sufficient knowledge and experience as to how a Government Order should be operated and/or implemented, may be relied upon.

22. The net result of the above discussion is that on the date of submission of nomination papers by the respondent as well as on the date of scrutiny of the nomination papers, the contracts entered into by the respondent with the Government were 5 subsisting and, therefore, the respondent was disqualified from filing the nomination papers and contesting the election. The respondent having incurred disqualification under the provisions of Section 9A of the Act, his election will have to be declared to be illegal. Accordingly, it is declared that the respondent had incurred disqualification under Section 9A of the Act and, therefore, his election from the Constituency in question is declared to be illegal, null and void.

23. The appeal is accordingly allowed. There shall be no order as to costs.

April 13, 2011.