B. Venkatarayappa vs Returning Officer, Siddlaghatta and Others

This is a petition filed under S. 81 of the Representation of the People Act, 1951 (hereinafter called the Act). The petitioner who had unsuccessfully contested the election held on 25.2.1978 to the Karnataka Legislative Assemblyfrom Siddlaghatta-66 Assembly constituency has called in question the election of the 5th Respondent, S. Munishamappa. Respondent 2, T.A. Kempegowda respondent 3, Narayanappa, and respondent 4 G. Papanna were the other candidates in the field.

As per the calender of events published by the Election Commission of India (Commission) the last date for filing the nominations was 1.2.1978; the scrutiny took place on 2.2.1978; 4-2-1978 was the last date of withdrawal; the poll took place on 25.2.1978; counting took place on 26.2.1978; and on that very day the 5th respondent was declared elected.

The total number of valid votes polled was 65,725. The main contest was between B. Venkatarayappa (petitioner) and 5th Respondent Munishamappa. The petitioner secured 27,106 votes and Munishamappa secured 34,683 votes

The only ground on which the election of the 5th respondent is sought to be set aside is that he had a subsisting contract with the Government at the relevant time, and therefore, was disqualified from contesting the election in terms of S. 9A of the Act.

The averments made in this connection are briefly as under:

Respondent 5 was a registered Class III Contractor in the Public Works Department (P.W.D.) of the Government of Karnataka; the Government called for tenders in the month of September, 1975, for the execution of a work called ''Improvements to Dibburhalli Talakayala Betta Road'' (hereinafter called D.T.B. Road) in Siddlaghatta Taluk, Kolar District at an estmated cost of Rs. 1,75,000; the 5th respondent being the successful bidder obtained the said contract and executed an agreement in favour of the Government on 4-3-1973; as per that agreement he had to complete that work by 4.1.1978; he had not completed the work on any of these dates, namely, 4.1.1978, 1/2/1978, 2/2/1978 or 25/2/1978; having done a part of the work he had drawn a rum of Rs. 278,765 upto 12.1.1977 and that the final bill had not yet been drawn or finalised; for having not completed the work he had not been issued with any certificate of completion of the work by the P.W.D. that under the agreement there was also an obligation on his part to maintain the work in good order for a period of one year from the date of completion; that in the circumstances, at the relevant dates referred to above there was a subsisting contract between the 5th respondent and the appropriate Government; that though the petitioner objected for the acceptance of the nomination paper of the 5th respondent at the time of the scrutiny the 1st respondent (the Returning Officer) overruled the same; during the campaign for votes the petitioner brought to the notice of the voters the disqualification from which the 5th respondent was suffering and told them that any votes cast in his favour would be deemed as thrown away votes in law; that, in the circumstances, the election of the 5th respondent should be set aside; and that he (the petitioner) should be declared as duly elected.

Respondent 2 to 4, though duly notified of this petition have remained ex-parte.

The first respondent (the Returning Officer) has in his written statement, stated that he was not a necessary party to the petition; no materials had been placed before him at the time of the scrutiny, establishing that the 5th respondent was suffering from the alleged disqualification; that it is for the petitioner to establish the case set up by him in the petition; and that in the circumstances, the petition against him should be dismissed with costs.

In his written statement the 5th respondent has stated as follows: the election petition contains schedules and annexures; they are an integral part of the petition; in the copy of the petition served on him (5th respondent) there was no schedule or annexure duly certified and attested by the petitioner; even the copy of the petition served on him is not a true copy of the petition; there has thus been non-compliance on the part of the petitioner with the provisions of S. 81 read with S. 83(2) of the Act, and therefore, the petition is liable to be dismissed in limine under S. 86(1) of the Act; that it was true that he had entered into an agreement with the Government undertaking to do the work referred to above; but he had completed the work in the month of November, 1977 itself; for the completed work he had drawn the last bill On 22.12.1977; the final bill was prepared and paid on 2.6.1978; that on completing the work he (5th respondent) by his letter dated 25-1-1978 to the Executive Engineer concerned duly intimated the fact of his having completed the work; that in the circumstances, it cannot be said that there was any subsisting contract on the date of his filing of the nomination paper as alleged; also that, in the event of the Court holding that he was suffering from a disqualification and thereby setting aside his election the petitioners cannot be declared as elected; and that in the circumstances, the petition may be dismissed with costs.

In view of these rival contentions the following issues were framed:

I. Was the election petition not accompanied by the required number of copies and were not the copies produced duly attested as provided under S. 81(3) of the Representation of the People Act, 1951?

II. Does S. Munishamappa (respondent-5) prove that the election petition contains annexures and schedules, and that the saidannexures and schedules had not been signed and verified by the petitioner as provided by S. 83(2) of the Representation of the People Act 1951?

III. Is the election petition liable to be dismissed under S. 86(1) of the Representation of the People Act, 1951 for non-compliance of the provisions of S. 81 or S. 82 of the Representation of the People Act, 1951?

IV. Had S. Munishamappa (Respondent-5) any subsisting contract with the State Government on the date of the filing of the nominations papers?

V. Had S. Munishamappa (Respondent-5) completed Dibburhalli-Talakavanala Betta Road works by the time he had filed his nominations?

VI. Was S. Munishamappa (respondent-5) disqualified in terms of Section 9A of the Representation of the People Act, 1951, from filing his nomination papers?

VII. In the election of S. Munishamappa (Respondent-5) void under S. 9A read with S. 100(1)(a) of the Representation of the People Act 1951?

VIII. If in case the election of S. Munishamappa (Respondent-5) is declared as void is the petitioner entitled to be declared as duly elected?

IX. What order?

The petitioner has examined himself (P.W. 16) and 15 other witnesses. The 5th Respondent also examined himself (R.W. 10) besides examining nine other witnesses. Both sides have relied upon number of documents and reference will be made to them at appropriate stages.

Before considering the case on merits let me first deal with issues 1 to 3.

In this connection the petitioner places reliance on the evidence of R.W. 1 Kambaiah and R.W. 2 Hashim Speed, and his own evidence. These issues cover the allegations made by the 5th respondent in the matter of service of copies of the election petition on him. He says the petitioner had violated the mandatory provisions of S. 81(3) of the Act, in that, he had failed to serve the schedule or annexure to the petition duly signed and verified by him as provided under S. 83(2) of the Act. The copy of the petition served on the 5th respondent is marked as Ex. R-5. It is duly verified as per Ex. P.5(a). In answer to this the contention of the petitioners is that the documents produced by him along with the petition were only documents of evidence and were not either schedules or annexures farming an integral part of the petition, and therefore, were not required to be served on the 5th respondent.

The law regarding this question is now well settled. In Sahodrabai Rai v. Ram Singh Aharwar, (1968) 2 SCJ. 650, it is observed as follows:

"Whether or not copies of particular documents, pamphlets or letters, relied upon as part of an election petition, should be enclosed for service on the respondents along with an election petition under S. 81 of the Representation of the People Act, is to be decided from the point of view of the requirements of the law. S. 83 of the Act lays down what an election petition should contain and provides that the trial of an election petition has to follow, as far as may be the provisions of the Code of Civil Procedure. It is permissible therefore to look into the provisions of the Civil Procedure Code relating to plaints and Service of summons to decide, the scope of the law relating to service of copies of election petitions. Under the provisions of the Civil Procedure Code, except in cases of suits on negotiable instruments documents filed with the plaint, are not required to be served on the defendants along with the plaint. The election law does not provide anything different.

S. 81(3) of the Act speaks only of enclosing copies of the election petition for service on the respondents. Section 83(2) has reference not to documents produced as evidence of averments in the election petition, but to averments which are put not in the body of the election petition, but in the accompanying schedules, or annexures eg., details of corrupt practices or averments too compendious to be included in the election petition itself but included as schedules or annexures to such petition. The law then requires that even though they are outside the election petition they must also be signed and verified. They are then treated as an integral part of the election petition and copies of such annexures or schedules should be served on the respondents if the requirement of the law regarding service of the election petition on the respondents is to be wholly complied with.

But this requirement of the law does not apply to documents which are merely evidence in the case, but which for reasons of clarity and to lend force are not kept back, but filed along with the election petition. They are in no sense an integral part of the averments of an election petition but are only evidence of those averments and in proof thereof. It would be stretching the words of Sub-Section (2) of S. 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. It will be too strict a reading of the provisions of Ss. 81, 83 and 86 of the Act to hold that failure to enclose copies of such documents for service on the respondents should entail dismissal of an election petition."

In a recent unreported decision of the Supreme Court in M.Kamalam v. Dr. V.A. Syed Mohamed, 1978 UJ. SC. 276: CA. 1963/77 dt/- 8-3-78, applying the ratio of the decision in Sahodrabai Rai''s case (supra), it is observed that sub-section (2) of S. 83 of the Act "applies only to a schedule or annexure which is an integral part of the election petition and not to a schedule or annexure which is merely evidence in the case but which is annexed to the election petitionmerely for the sake of adding strength to it."

Ext. R-1 is the election petition. Along with the petition had been filed an index (Ext. P-4) mentioning the particulars of the papers produced along with the petition, I may usefully extract Ext. P-4:

Ex. P-4.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE ELECTION PETITION NO. 2/1978.

Between:

B. Venkatarayappa Petitioner

And:

The Returning Officer, Shri Lakshminarasaiah for Siddleghatta 66 Assembly Constituency and 4 others Respondents.

INDEX

S. No. Particulars pages.

Memorandum of Election petition. 1 to 18

Certificate of Declaration of result. 19

Security Deposit Certificate 20

Vakalath. 21

Index of documents 21-A

List of documents with documents 22-57

Bangalore.

D/31.3.1978 Sd/- Advocate for petitioner

All these documents had been stitched in the form of a book numbering the pages from 1 to 57. These include the memorandum of election petition (pages 1 to 18), certificate of declaration of result (Page-19), security deposit certificate (page-20), vakalat (page 21), index of documents (page, 21A) and list of documents with documents (P. 22 to 57) Ext. P.4 extracted above. The index of documents which is given at Ex. P-4 & referred to therein is itself marked as Ex. R. 2. This contains the list of documents produced along with the petition. They were Sl.Nos. 1 to 12 which are as under: Sl. No. Particular Page No. Document No.

Certified copy of declaration of results. 19. D-1

Endorsement of the Superintending Engineer, Bangalore Circle. 22. D-2

Renewal Certificate. 23. D-3

True Copy of the Solvency Certificate. 24. D-4

True Copy of the Gazette Notification 25. D-5

Copy of the Proforma 26. 26. 51 D-6

7 Photographs with negatives (3 positives plus 8 negatives) 52. D-7

Certified copy of the objections filed by the petitioner before the Returning Officer. 53. D-8

Certified copy of the order of the Returning Officer 54. D-9

Pamphlet. 55. D-10

Pamphlet. 56 D-11

Certified copy of the Notice of Election of the Returning Officer. 57 D-12

Bangalore,

Dt. 31.3.1978. Sd/- Advocate for petitioner

It is a fact that copies of these documents had not been served on the petitioner. Documents referred to above as is clear, are only documents of evidence. For reasons of clarity and to lend force to the petition they had been produced or filed with the petition. In no sense can they be taken as an integral part of the averments of the petition. As observed in Sahodarabai Rai''s case (supra) it would be stretching the words of sub section (2) of S. 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. Therefore, in my opinion there is no force in the contention of the 5th respondent that the election petition should be dismissed in limine for non compliance of the provisions S/81(3) read with S/83(2) of the Act. Accordingly issues Nos. 1 to 3 are answered in the negative and against the 5th respondent.

Now to take up issues 4 to 7. Those issues cover the contention of the petitioner that the 5th Respt. had a subsisting contract with the Government of Karnataka when he filed his nomination paper and continued to suffer from that disqualification on the date of election and even thereafter. The rival contentions of the parties in this regard in their respective pleadings are set out above.

In this connection the petitioner relies on the evidence of P.W. 1, P.R. Nagarajan the Executive Engineer; P.W. 2 N. Srinivasan official in the Chief Engineer''s Officer P.W. 3 B.N. Channappa the Assistant Executive Engineer; P.W. 4 Azeaz Mirza, an official in the office of the Superintending Engineer; P.W. 5 L. Shivalingaiah, Superintending Engineer, Bangalore Circle; P.W. 6 Sriram Reddy; P.W. 7 Venkoba Rao, the photographer; P.W. 9 Munirathnam; P.W. 11 Matama Reddy; and on his own evidence as P.W. 16. On his side the 5th respondent, besides relying on his own evidence, has examined, to substantiate his claim that he had completed the contract work, R.W. 8 T.S. Krishna Murthy and R.W. 9 B.V. Thimmiah, Junior Engineer, PWD. Both sides have relied upon number of documents.

A few relevant facts which are not in dispute may be stated:

The Public Works Department of the Government of Karnataka called for tenders from the approved contractors to undertake the work called Improvements to Dibburhalli-Talakayala Betta Road (D.T.B. Road). Ex. P-6 dated 10.9.1975 is the Tender Notification issued from the office of the Executive Engineer. Though the amount put to tender was Rs. 1,75,000/- the estimated amount was Rs. 1,88,000/-. Amongst those who had submitted their tenders the 5th respondent was one. His tender was accepted. In pursuance to this he executed an agreement, Ext. P.7, dated 25.4.1976 in favour of the Government undertaking to do the work (Ex. P. 7 contains pages 1 to 61). A work order was issued to him as per Ext. P. 8 dated 25.3.1976. In this connection the 5th respondent had also deposited an earnest money amounting to Rs. 4,375. The D.T.B. Road work consisted of the construction of abridge on the road across a stream (river Papgni) with approaches on either side of the bridge. The place is about a mile away from village Dibburhalli proper. The 5th respondent had commenced the work on 4.3.1976. A deviation road had been formed diverting the traffic away from the work spot. As per agreement, Ex. P. 7, the work was required to be completed on or before 4.1.1978. The conditions of the contract are enumerated at Ex. P.7(a). After satisfactorily completing the work the contractor, according to the agreement, had to maintain the same in good condition for a, period of 12 months. This is stipulated in paragraph (ii) of Clause 1 at Ex. P.7(a), and this part of the agreement is got marked as Ext. P.7(b) which reads as follows: -

"(ii) The security deposit lodged by a contractor shall be refunded after the expiry of three months from the date on which the final bill is paid, or after the expiry of the date up to which the contractor has agreed to maintain the work in good order, whichever is later.

NOTE: The period of maintenance shall be twelve months from the date of completion of the work."

Then Clause. 2 of the agreement stipulated that time was the essence of the contract. The contractor was required to strictly observe the same and the time shall be reckoned from the date of handing over the site to the contractor, after the issue of written order to commence. In the event of the contractor failing to perform his part of the obligations he was made liable to certain consequences. These consequences are enumerated at Clauses 3(a) and 4. Reference will be made to them in detail at a later stage.

S. 9A of the Act, which disqualifies a person from contesting the election and from continuing as a Member of the Legislature if he had a subsisting contract with the appropriate Government reads as follows:

"9A. Disqualification for Government Contract Etc.-A person shall be disqualified if, and for so long as, there subsists, acontract entered into by him in the 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 purposes of this section, where a contract hap 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".

While denying the contention of the petitioner that the 5th respondent had a subsisting contract with the Government on the relevant dates, the stand taken up by the 5th respondent in his written statement, referred to above, was that he had completed the work in respect of this contract by November, 1977 and for the completed work the last bill had been drawn on 22.12.1977. According to the petitioner, the 5th respondent had not completed the work, but had done only a part of it. It is stated by the petitioner, and he, has let in some evidence to show that the 5th respondent had not done the R.C.C., approach road work, a part of the work taken by the 5th respondent under Ext. P-7. This approach, road work consisted of laying down of approach road slabs, collection of 40 mm metal and spreading and consolidating of the said metal on either side of the bridge. The stand taken by the 5th respondent in his written statement meeting this allegation at para-9 is as follows:

Providing for approach slabs and collection and consolidation for approach was not done by this respondent as the Assistant Engineer and the Executive Engineer desired that this should be done alter one more rainy season is over. The above said two items of work are unconnected with the work entrusted to him and are absolutely insignificant in value and as such it is submitted that when he severed his connection with the Government the work had been completed fully and substantially. The work is therefore, completed within the meaning of S. 9A of the Act.

Even though that was the specific stand taken up by the 5th respondent in his written statement, the, learned Counsel, in the course of his argument made two other submissions in support of his contention that there was no subsisting contract. Besides stating that the 5th respondent had complied with the terms of the contract fully and substantially and that what had remained to be done were very minor items of work, the learned Counsel argued that even otherwise time being the essence of the contract, even if the 5th respondent had not completed the contract work by 4.1.1978 as contended by the petitioner it had resulted in a breach of the contract, and therefore, it could not be said that either on 1.2.1978 or thereafter there was a subsisting contract between the parties. Secondly, he submitted that though the 5th respondent was ready to do the remaining work, that is to say, the approach road work he was asked by the Departmental Officials to postpone that work beyond the coming monsoon, and therefore, could not do even that small item of work well in time i.e., 4.1.1988 and his client in turn, had told the Departmental officials to get that work done through somebody else. He argues that agreeing with this Departmental officials had got that work done through others subsequently and had fully paid his client for the work he had completed, and thereby there was also an abandonment of the contract by mutual agreement. In this view according to him, looked at from any angle, there was no subsisting contract with the Government as alleged.

But his bald, assertion in his written statement that the approach road work consisting of the three items referred to above did not form part of the original contract cannot be accepted. There is unimpeachable evidence on record to show that it formed part of the original contract. As can be seen from Ext. P-7, D.T.B. Road work consisted of three major items namely, formation of the approach road, form of the deviation road and the bridge portion. P.W. 1 Nagaraj, Executive Engineer, who was one of those officials responsible for the execution of this work, has clearly stated that thin D.T.B. Road work consisted of not merely the construction of the bridge but also its approaches connecting roads on either fide of the bridge. In fact this is elicited in cross-examination. This is not challenged also. Therefore, it has to be said that the approach road work was an integral part of the contract taken up by the 5th respondent.

Let us now examine the contention of the 5th respondent that he had completed all the items of work except the approach road works which also he was willing to do but was prevented from completing the same in time on being directed by the Departmental Officials to post-pone the same beyond the coming monsoon. There is evidence on record to show that except these three items the 5th respondent had completed the work by the end of December, 1977 itself. In this connection reference may be made to the very evidence placed by the petitioner. That evidence mainly consists in the Departmental correspondence which has been accepted by the officials who have been examined on behalf of the petitioner in Court. There is also some oral evidence.

** ** **

This documentary evidence coupled with the oral evidence referred to above clearly establish that the 5th respondent had completed the entire contract work except the approach road work consisting of the three items referred to above, before 1.2.1978.

Now, let us examine the contention of the 5th respondent that he was ready and willing to perform even this approach road work well in time but on being directed by the officials who were incharge of the supervision of this work not to do the work immediately but to post-pone the same beyond the coming monsoon, he could not complete the same. It is also his case that, on thus being prevented in doing that work, he had told the officials concerned that he was unable to wait thus far, that they may get that work done through somebody else, and for the work done the bills may be finalised and the balance, if any, be paid to him. It is further his case that the Departmental people had agreed to do so and had got that work done through somebody else without raising any objection. In this connection the 5th respondent not merely places reliance on what was elicited in the cross-examination of some of the witnesses of the petitioner but also on the evidence of Thimmaiah (R.W. 9), Junior Engineer, and on his own evidence.

** ** **

Thus, in my opinion, the evidence on record establishes the fact that the approach road work consisting of the above items was not done by the contractor well in time because he had been directed to post-pone the same beyond the following monsoon. The Departmental Officials without raising any objection have got this work done through somebody else, and for the work thus for done by the 5th respondent he has been paid, in full. From the evidence thus far discussed it is clear that the 5th respondent in accordance with the terms and conditions of Ex. P.-7 had done a substantial part of the work taken up by him prior to 1.2.1978 except for the approach road work consisting of the minor items referred to above and he was willing to, do that part of the work also in time i.e., 4.1.1978, but he was presented from completing the same in view of the directions of the P.W.D. Officials incharge of the work to postpone it beyond the coming monsoon. The monsoon in this area usually commences by the first or second week of June every year. It was argued that the Junior Engineer had no powers to give such a direction. But, whatever may be his status in the hierarchy of the P.W.D., the contractor was, bound to obey him since he was the officer on the spot concerned with the day-today progress of the work.

In so far as this item of work-approach road work is concerned I am of the view that the obligations of the contractor to perform it had been discharged by the event referred to above. When he wanted to complete the work he was told not to do the same, but to postpone it beyond the following monsoon i.e., by almost half-a-year. He, therefore, said in the circumstances he was unwilling to do that work and that the Department may get that done through somebody else and that his bills may be settled finally for the work he had completed. That, as shown above, has been done by the Department. They got the work done through somebody else and they have paid the monies for the work completed by the contractor. His obligation to perform this part of the contract had been discharged prior to 1.2.1978 itself. That was the position existing as on 1.2.1978 in this matter.

But what was argued by the learned Counsel for the 5th respondent, as set out in para-20, was that in view of this the entire contract had come to an end by abandonment by mutual agreement between the parties long prior to 1.2.1978. I am unable to agree with this view. The entire contract had not been abandoned. The major part of the work had been completely and fully performed by 1.2.1978. It was only this part of the work relating to the approach road work that was not done, and could not be done for the reasons mentioned above. I have said in so far as that obligation on the part of the 5th respondent was concerned that part alone had been discharged. If it can be construed as an abandonment as contended by the learned Counsel for the 5th respondent, the abandonment by mutual agreement has reference only to this part of the work and not to the entire contract as argued.

Further, while submitting that there was no subsisting contract as on 1.2.1978, the learned counsel also argued that one of the terms of the contract was that his client should complete the work by 4.1.1978; that it has been stipulated in Ext. P-7 that time was the essence of the contract; that even if it can be said on facts that he had not fully performed his part of the work on or before 4.1.1978 it should be held that it had resulted in a breach of the contract, and therefore, as on 1.2.1978, there having occurred a breach earlier, there was no subsisting contract, In the first place, as already stated at para-20 above that that has not been the stand taken up by the 5th respondent in his written statement. Even otherwise, examining the contention on merits in the light of the materials placed on record has to be stated that there was no such breach of the contract as contended by the learned Counsel. This is so in view of the fact that the entire work barring the approach road work had been completed by the contractor prior to 4.1.1978. Even if one or two small items, apart from the approach road work had remained over, that cannot be said to have resulted in a total breach of the contract so as to put an end completely to the obligations of the 5th respondent arising under the contract as stipulated in Ext. P-7. In this connection I may usefully refer to some of the Clauses of the contract at Ext. P-7 (a). Paragraph-2 of Clause-2, Clause-3, Clause 3(a), and part of Clause-4 read, as follows:

** ** **

"Clause 2:-In the event of the contractor failing to comply with these conditions (except for reasons beyond his control) he shall be liable to pay as penalty an amount equal to one per cent or such smaller amount to the Superintending Engineer or higher authority (whose decision in writing shall be final) may decide of the said estimated cost of the whole work for every day that the due quantity of work remains incomplete; provided always that the total amount of penalty to be paid under the provisions of the clause shall not exceed 71/2 per cent of the estimated cost of the work as shown in the tender.

Clause 3.-Action when whole security deposit is forfeited.-In any case in which under any clause or clauses of this contract the contractor shall have rendered himself liable to pay compensation and or penalty amounting to the whole of his security deposit (whether paid in one sum or deducted by instalments) the Executive Engineer, on behalf of the Governor of Karnataka shall have power to adopt any one or more of the following courses as he may deem best suited in the interest of Government.

Clause 3(a).-Without prejudice to Government''s right to recover any loss from the Contractor under Sub-Clauses (b) and (c) of clause 3 of the contract, to rescind the contract (of which rescission notice in writing to the contractor under the hand of the Executive Engines shall be conclusive evidence) and in that case, the security deposit of the contract including the whole or part of the lump sum deposited by him shall stand forfeited and be absolutely at the disposal of the Government.

(b) To employ labour paid by the Public Works Department and to supply materials to carry out the work, or any part of the work, debiting the contractor with the cost of the Labour and price of the materials (as to the correctness of which cost and price the certificate of the Executive Engineer shall be final and conclusive against the contractor) and crediting him with the value of the work done, in all respects in the same manner and at the same rates as if it had been carried out by the contractor under the terms of his contract, and in that case the certificate of the Executive Engineer as to the value, of the work done shall be final and conclusive against the contractor.

(c) To measure up the work of the contractor and to take such part thereof as shall be unexecuted out of his hands, and give it to another contractor to complete it in which case any expenses which may be incurred in excess of the sum which would have been paid to the original contractor if the whole work had been executed by him (as to the amount of which excess expenses the certificate in writing of the Executive Engineer shall be final and conclusive) shall be borne and paid by the original contractor and shall be deducted from any money due to him by Government under the contract or otherwise or from his security deposit or the proceeds of sale thereof, or a sufficient part thereof.

"In the event of any of the courses being adopted by the Executive Engineer, the contractor shall have no claim to compensation for any loss sustained by him by reason of his having purchased, or procured any materials, or entered into any engagements, or made any advances on account of, or with a view to the execution of the work or the performance of the contract. And in case the contract shall be rescinded under the provision aforesaid, the contractor shall not be entitled to recover or be paid any sum for any work theretofore actually performed by him under his contract, unless and until the Executive Engineer shall have certified in writing the performance of such work and the amount payable in respect thereof, and he shall only be entitled to be paid the amount so certified."

Clause-4 In any case in which any of the powers conferred upon the Executive Engineer by Clause-3 hereof shall have become exercisable and the same shall not have been exercised, the non-exercise thereof shall not constitute a waiver of any of the conditions hereof and such powers shall notwithstanding be exercisable in the event of any future case of default by the contractor for which under any clause or clauses hereof he is declared liable to pay compensation or penalty amounting to the whole of his security deposit and the liability of the contractor for the past and future compensation or penalty shall remain unaffected.

Even though it is mentioned in Ext. P-7 that time stipulated is the essence of the contract, normally in these class of cases time is not construed as the essence of the contract. Also, merely because in a contract where, a, part of the work had been completed and some items had remained over, it does not result in the breach of the contract or in discharging the obligations automatically unless the other party treated that to be so. The Government, in the instant case, had not taken any steps to treat the entire contract as broken and discharged. As observed in M.S. Kallasanda Sarma v. The President, District Board, Tanjore, (1927) 106 Ind. Cases 815 when a party to a contract is entitled to cancel it by reason of the breach of the other, notice of cancellation should be given to the other party. If no notice is given it must be deemed that the breach had been condoned and that the contract is allowed to continue. The learned Counsel for the 5th respondent also places reliance on two decisions one of the Supreme Court in Atam Das v. Suriya Prasad, 41 ELR. 359 and the other of the Punjab and Hariyana High Court in Amokh Singh v. Surinder Singh, 42 ELR. 485. The facts of those cases are different from the facts of this case. On facts, no doubt, in both cases it was inferred that there was an abandonment of the contracts concerned. The nature of this contract, the conditions stipulated in writing, and the surrounding circumstances all clearly indicate that no breach of contract had occurred and the parties concerned had not treated the same as such. Likewise, it cannot also be said, from the materials placed onrecord, that there was an abandonment of the entire contract as argued by the learned counsel for the 5th respondent.

What is now left to be examined is as to whether the contract had come to an end by the 5th respondent discharging his part of the obligations by the time he had filed his nomination paper? According to the learned Counsel for the petitioner the contract was still alive and subsisting even assuming that the 5th respondent had executed the work in entirety. According to her under the agreement, Ext. P-7, he was bound to maintain the work done in good order for a period of 12 months from the date of completion of the work. As stated above at para-18. this is one of the conditions of the contract (Vide Ex.P-7(b)) extracted at page 18. Even though, as stated above, by mutual agreement between the Government and the 5th respondent, the obligation, of the 5th respondent to do the approach road work had been discharged, his obligation. as stipulated in the contract re: the items of work completed by him had not come to an end. In effect this means that his undertaking that he would maintain the work for a period of 12 months after completing the work did remain in force. Whatever work he had done or what part he had completed was required to be maintained by him as agreed to. There is nothing on record to show that either by agreement or otherwise this stipulation of the contract was waived. What is its effect? Does it not keep the contract alive? Can it not be said that by virtue of that Clause there was a subsisting contract within the meaning of S. 9A of the Act? While arguing that it would not be so the learned Counsel for the 5th respondent submitted that S. 9A should be very liberally construed and also drew my attention to certain observation made by His Lordship Krishna Iyer, J. in his separate, judgment in Jugal Kishore Patnaik v. Ratnakar Mohanty, AIR. 1976 SC. 2130 In para 19 his Lordship has been pleased to observe as follows:

"19. Yet another legislative insufficiency surrounding S. 9A of the, Act needs to be highlighted. This provision, as has been explained earlier by my learned brother, disqualifies a person from being a candidate if there subsists a contract entered into by him in the 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. It is followed by an Explanation which is more or less a legal fiction. The rugged edges of ambiguity of S. 9A especially as to how long and in what sense can a contract be said to be subsisting envelop the disbarment provision with the subtle legal questions. The common man of India is the potential candidate and is he to risk his candidature on the niceties of the law of contract? In this context we must remember that the vast and various developmental works undertaken by the State and its subsidiaries and executed by a large number of little construction contractors make it very desirable that the disqualifactory net should not be cast too wide to disfranchise innumerable persons and must be easy of ascertainment if uncertainty is not to overhang elections in our political system. In this very case several problems were mooted, somewhat difficult to answer. How long does a contract subsist? Is every liability arising on a breach of contract, a claim under the contract attracting the lethal coils of section 9A? If Government money is involved in the execution of the work, does the contract necessarily become one with Government? A host of other questions may mystify the legal import of the taboo Section 9A sets out and every lay man is impaled by this vague provision in the exercise of his electoral right. Such a brooding productive and may perhaps have to be re-drafted in the light of experience in Court."

Then, after quoting a passage from (1961-62) 71 Yale LJ., and referring to the, observations of the Lord Chancellor Westbury in Vol, 28 Mod. L.R. page-1 and the views of Benjamin N. Cardoza expressed in his address to the Bar Association of the city of New York, his Lordship (Krishna Iyer, J.,) has stated as follows:

"May be, as has been done in the State of New York, the establishment of a law Revision Commission charged with comprehensive law reform duties with direct link with the law court may goa long way to meet the felt need".

As is clear, his Lordship, having in view the rigidity of this branch of law as it exists now, has suggested changes in the same and a rethinking in the matter by the Legislature and law men. But to understand the real import and meaning of S. 9A as it stands we are required to take recourse to some other authorities of the Supreme Court, wherein the ambit and scope of S. 9A, as it exists, has been considered. The learned Counsel for the petitioner placed reliance mainly on the decision of the Supreme Court in Konappa Rudrappa Nagouda v. Viswanatha Reddy, (1969) 1 SCR. 395 and submitted that that decision was directly on the point and the ratio enunciated therein apply on all fours with the facts of this case. I may usefully extract the observations of their Lordships which are as follows:

"The appellant and the first respondent were candidates for election in February, 1967 from the Yadagiri constituency which was won by the first respondent. The appellant challenged his election by a petition on the ground that he was a partner in a firm which had two contracts with the State Government, one for the construction of a road and the other for the construction of a dispensary building, which were subsisting on the day when nominations were filed; he was therefore disqualified from being a candidate under S. 9A of the Representation of the People Act, 1951 and his election was void. The appellant also claimed that he was entitled to be declared elected as the votes cast in favour off the first respondent must be regarded as thrown away. From the evidence led before the High Court it was clear that the first respondent had obtained certificates from Officers of the State Government to the effect that the contracts were complete but that these certificates were subsequently cancelled as it was considered that the work was not completed. After appraising the the evidence, the High Court came to the conclusion that although some of the items from the two contracts might not have been completed, the contracts as a whole were substantially performed and therefore there was no bar to the candidature of the first respondent. It also held that although the agreements concerned clauses for maintenance and repairs over a period of time after the completion of the work of construction, there did not have the effect of making them subsisting contracts. The High Court therefore dismissed the election petition."

Held on appeal,

The High Court was in error in holding that the contracts had been fully performed and S. 9A did not apply. The appeal must therefore be allowed and the election of the first respondent declared void. Further more the votes cast in favour of the first respondent must be treated as thrown away and in the absence of any other contesting candidate, the appellant declared elected. "(i) Taking the fact that some portion of the original contracts remained to be performed with the fact that under the contracts the 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, the matter must be regarded as falling within S. 9A of the Act. In the context of construction of buildings and roads, it is obvious that of 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.

(ii) There was no force in the contention that under Art. 299 the contract in question had to be signed by the Secretary to the Government whereas in the present case it was signed by the Executive Engineer.

Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram. 1954 SCR. 817 applied.

(iii) The law requires that a candidate should not have any interest in any contract with Government and therefore even a partner in a firm has an interest sufficient to attract the provisions of S. 9A. The fact that the partnership itself had been dissolved in the present case would have no effect upon the relations between the first respondent and the Government.

The first respondent could not by a private dissolution of the partnership escape his liability under the contract to the Government and there was here no novation, because notice of the dissolution was not given to Government and the Government had not accepted the person to whom the business was transferred in place of the respondent''s firm." (underlining italics is mine).

In Konappa''s case also there was a Clause (Cl. 20) which provided that the contractor is to maintain the reconstructed portion of the road for a period of three months after the Executive Engineer has certified the same to be completed to his satisfaction. Two contracts were involved in Konappa''s case and in one the condition was that it should be maintained for three months and in the other for one year. It was argued before their Lordships that any condition of guarantee for repair cannot be construed as a contract for the execution of the work, and therefore, that merely because there is a guarantee placed the contract should not on that account alone be construed as subsisting provided the work agreed to be done had been done in full. Not agreeing with this view, their Lordships have observed as follows at page 402.

"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 Hudson''s 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 referred earlier. In Chatturbhu Vithaldas Jasani''s case 1954 SCR 817, Bose. J. dealt with a similar point in the following words:

"It was argued that assuming that to be the case, then there were no longer any contracts for the ''supply of goods'' in existence but only an obligation arising under the guarantee clause. We are unable to accept such a narrow construction. This term of the contract, whatever the parties may have chosen to call it, was a term in a contract for the supply of goods. When a contract consists of a number of terms and conditions, each condition does not form a separate contract but is an item in the one contract of which it is a part. The consideration for each condition in a case like this is the consideration for the contract taken as a whole. It is not split up into several considerations apportioned between each term separately. But quite apart from that the obligation, even under this term, was to supply fresh stocks for these three depots in exchange for the stocks which were returned and so even when regarded from that narrow angle, it would be a contract for the supply of goods. It is true they are replacements but a contract to replace goods is still one for the supply of the goods which are sent as replacement".

Applying these 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."

In the instant case, amongst the conditions of the contract Ext. P-7(b) Clause 1 clearly stipulated that the contractor has to maintain the work in good order for a period of 12 months from the date of the completion of the work. As setcut in, the written statement, according to the 5th respondent, he had completed the work by the month of November, 1977. I have held above that barring the approach road work the remaining work had been fully done by him to the satisfaction of the other pasty (Government) to the contract. In his deposition the 5th respondent says he had completed these works by the end of October, 1977. This is also the evidence of Junior Engineer, Thimmiah (R.W. 9). Even then as per Ext. P-7(b) the maintenance Clause operated against him in respect of the work executed by him for a year thereafter, i.e., till the end of November, 1978. Therefore, applying the ratio of Konappa''s case (supra) it has to be staled that the contract entered into by the 5th respondent under Ext. P-7 did subsist on 1.2.1978 and also on the date of election. Therefore, my finding on issue. No. 4 is in the affirmative. Consequently, issue No. 5 is answered in the negative. Since there was a subsisting contract by the 5th respondent with the appropriate Government, the dis-qualification as provided under S. 9A of the Act, attracted to his case, and therefore, I answer issues Nos. 6 and 7 in the affirmative and hold that the 5th respondent was disqualified from contesting the election, and the result is that his election to the Karnataka Legislative Assembly is void under S. 100(1)(a) of the Act.

Now, the 8th issue requires to be considered In addition to seeking a declaration that the 5th respondent''s election is void, a further relief is sought for by the petitioner to declare him as duly elected, The ground on which a candidate other than a returned candidate my get such a declaration are set out in S. 101 of the Act which reads as follows:

"101. Grounds for which a Candidate other than Returned Candidate may be declared to have been elected.-If the petitioner has in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion.- (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the, High Court shall after declaring election of the returned Candidate to be void declare the petitioner or such other candidate as the case may be, to have been duly elected."

Any one of the following two conditions are required to be satisfied before such a declaration is made: (1) that in fact the petitioner of such other candidate received a majority of the valid votes or (2) that, but for the votes obtained by the returned candidate by corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid voter. Since this is not a case wherein the election is sought to be set aside on the ground of corrupt practices, if the petitioner has to succeed in this further plea of his, he should show that in fact be had received a majority of the valid votes. It is in this connection the rule or theory of "thrown away votes" is brought into play. Number of authorities were cited by the learned Counsel appearing for both the contesting parties. Since many of them deal with cases of corrupt practices the ratio of those decisions do not have a bearing on the facte of this case, and therefore, are not referred to. Including the petitioner there were five in the field, The valid votes secured by each of them were as follows:

Respondent-5:

Petitioner:

Respondent-4:

Respondent-3:

Respondent-2. 34,683

27,106

3,205

422

309

The 5th respondent was a nominee of the Congress (I) and the petitioner was that of the Janatha Party. This is a case where the election of a returned candidate has been set aside by the Court, not on grounds of corrupt practices, but on the ground that the returned candidate was disqualified to be chosen to fill the seat. This is also not a case of a straight contest. I may refer to two decisions of the Supreme Court. In Keshav Lakshman Borkar v. Dr. Deorao Lakshman Anande, (1960) 21 ELR 466, the Supreme Court (Bench consisting of two Judges) took the view that even in case of straight contest between only two candidates the question of throwing away of votes ''cannot arise in the absence of some special pleading that particular voters had cast their votes with knowledge or notice that the candidate for whom they had voted was ineligible for election, and that consequently they had deliberately thrown away their votes in favour of a disqualified person''. Disagreeing with that view in Konappa Rudrappa Nadgouda v. Viswanatha Shetty, (1969) 2 SCR 90, the Supreme Court (Bench consisting of Five Judges) has held that in cases falling under Clause (a) of S. 101 when there are only two candidates for one seat and the returned candidate is found to be under a statutory disqualification the other may be declared elected under S. 84 read with S. 101(a) even though the voters had no notice of the disqualification of the successful candidate. The Court in the above case has observed as to how the question has to be faced if there are more than two candidates in the field and the election of the returned candidate is set aside on the above ground. The observations of the Court are as follows: (at P. 95) "this is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared as elected. In such a case the question of notice to the voters may assume significance for, the voters may not, if aware of the disqualification have voted for the disqualified candidate."

So, the law is that if there are more candidates than only two in the field and if the election of the returned candidate is set aside on the ground that he was disqualified from contesting the election the votes cast in his favour will be deemed to have been "thrown away votes" only if it is shown that voters who had voted for him had notice or knowledge that that candidate was suffering from the alleged disqualification. In this connection the following observations of the learned Author Rameshwar Dial in his book ''Election law'' (3rd Edn.) at page 405 may be noted:

"The basis of the rule is that the votes given after notice or knowledge must be treated as having been given perversely by the voters so that they know their votes as thrown away and the following must be proved:

(a) Notice or in exceptional cases notoriety or actual knowledge is essential;

(b) It must be shown that the circumstances in which the voters voted after notice were such as to lead to the fair inference of Wilful perverseness on their part.

(c) It will not do if on the position notified to the voters there is room for any considerable ambiguity or doubt as to whether the candidate is really qualified or not.

(d) In case there is a reasonable difficulty as to the facts and as to the law, rendering the candidate as disqualified the votes given for the candidate who eventually turns cut to be wanting in disqualification, cannot be treated as thrown away.

(e) A disqualification held to exist at the time of the decision by the Tribunal without legal adjudication will cause the votes given for the candidate thrown away, but not a disqualification which exists only from the date of decision by the tribunal, such as resulting from the proof of bribery committed by the candidate.

(f) Regarding the form of notice, it should be given in writing.

The crux of the matter is whether votes in a particular case given for the returned candidate are to be treated as thrown away, as if they had never been given; or whether they are to be treated as votes not thrown away in that sense, though infructuous. If thrown away in the full sense, it clearly follows that on a scrutiny by the election tribunal they are to be deducted from the count of valid votes; with this consequence that the next candidate may, if the votes thrown away turn the balance, rightly be said to have received the majority of valid votes. He may then be duly elected and be seated without any fresh election........."

In the instant case the contesting parties have joined issue on this question and have let in evidence. The petitioner has examined Kashinath Sastry (P.W.8) Munirathnam (P.W.9) Abdul Jaleel Sab (P.W.10). Matama Reddy (P.W. 11). Appi Reddy (P.W.12), Gundiah Shetty (P.W.13), Veerappa (P.W.14) and Bachhey Gowda (P.W.15). Besides this, in his own evidence also he has spoken about this fact. The petitioner places reliance on some documentary evidence which mainly consists of pamphlets printed and circulated to voters intimating this fact, that is to say, the disqualification from which 5th respondent suffered and telling the voters that if in case they were to vote for him the same would go waste. Kashinath Sastry (P.W.8), a Printing Press owner at Siddalaghatta had stated that he had printed for the petitioner about 30,000 pamphlets like Ext. P-44 on or about the 6th of February, 1978, and about 50,000 pamphlets like Ext. P-45 on 8.2.1978 and had delivered all of them to the members of the petitioners party. I have no reason to doubt the testimony of this witness. Munirathnam (P.W. 9) was in those days the Secretary of the Janatha Party at Siddlaghatta town He says he had carried on the campaign on behalf of the petitioner and had told the voters about the disqualification of the 5th respondent. He also speaks about 3 or 4 public meetings held at Siddlaghatta town on different occasions and addressed by Sri George Fernandes, Sri Gundaiah Setty, Smt. Padma Joshi, and another, a Member of Parliament. The evidence of this witness mainly confines to the party activities at Siddlaghatta town consisting of about 11,000 and odd voters. In cross-examination the witness has stated that they had got printed about 2 lakhs pamphlets and distributed all over the constituency. Jaleel Sab (P.W.10) says that he had canvassed not merely in Siddlaghatta town but m the neighbourhood of that town and told about 6,000 and odd muslim voters in Urdu Language about the disqualification of the 5th respondent. Matama Reddy (P.W.11) is said to have carried on similar campaign in one of the hoblies consisting of about 9,000 voters. Appi Reddy (P.W.12) says that he had also done such propaganda in two hoblies consisting of 18,000 voters. Sri Gundaiah Shetty (P.W.13), an Advocate, and presently a Member of the Legislative Council, has deposed about his having addressed a public meeting at Siddlaghatta Town. He says that at that meeting he too had told the audience about the contract work of the 5th respondent and the disqualification from which he was suffering. He has stated that he had told the voters that if in spite of this, if they were to vote for him, the same would go waste. I have no reasons to doubt the testimony of this witness in this respect. The next witness is Veerappa (P.W.14), then a Member of the Janatha Party, and he speaks of having campaigned for votes on behalf of the petitioner at Kasaba Hobli consisting of about 20,000 voters. He too is said to have told the voters about this disqualification of the 5th respondent. Bachhey Gowda (P.W.15) says that he had done such a propaganda at Jangamakote Hobli. The petitioner has deposed about himself and his party men having told the voters in the constituency about this fact. The evidence adduced by the 5th respondent in this connection is mainly negative in nature. His witness Byra Reddy (R.W. 30) of village Amagaranhalli, Venkata Reddy (R.W. 4) of village Poosagandoddi, Phizulla (R.W. 5), a merchant of Siddlaghatta Town, Aswath Narayan Rao (R.W. 6) also a merchant of Siddlaghatta town, and Kempanna (R.W.7), an agriculturist of Chikkandhalli, have stated about their having witnessed the campaign work carried on by the petitioner and his men, but of their having not heard a word being uttered by any of there people in connection with this disqualification of the 5th respondent. To that effect also is the evidence of the 5th respondent (R.W. 10).

From the foregoing discussion of the evidence on this aspect of the matter, it appears, that the petitioner and his supporters and party men in their propaganda had told on several occasions about the disqualification from which the 5th respondent was suffering. But the crucial question still to be answered is whether in a case like this the voters of this predominently rural constituency had full notice or knowledge of the disqualification of the 5th respondent. It is stated above that the disqualification was mainly due to the maintenance Clause in the agreement entered into between the 5th respondent and the Government. It is not necessary to repeat again the nature of the evidence and the intricate questions involved in this matter. Unless it can be said that the voters who had heard about this disqualification had full knowledge of the facts and had grasped the complicated questions of law and facts, it is not possible to say that they had in fact notice or knowledge, as is required in law, of this disqualification. It is possible that a lew literate voters at Siddlaghatta town, if they had made any honest effort, understood the implication of what they had been told on this respect. The majority of the voters are illiterate and rural based. Even if they had been told through the media of loudspeakers etc or had been individually met and told all these things, were they in aposition to understand the implication of this? It is ture that in the instant case, the main contest was between the petitioner and the 5th respondent. The difference between the number of votes polled by them is of the order of 7,000 and odd. The other three candidates have, no doubt, lost their deposits. But to hold, as provided in S. 101(a) "that in fact the petitioner............ had received a majority of the valid votes" it is necessary to have a clear finding that the voters of this constituency who had voted for the 5th respondent had notice-notice as contemplated by the election law of the 5th respondent''s disqualification. Then only all those votes polled in his favour can be considered as thrown away votes, and the petitioner can be said to have received a majority of the valid votes. In the circumstances of the case, indeed it would be very difficult and risky to hold that the voters had full knowledge or notice of the 5th Respt''s disqualification and therefore the votes, polled in his favour were thrown away votes, The observations of His Lordship Krishna Iyer, J. made in Vatal Nagaraj v. R. Dayanand Sagar, AIR 1976 SC 349, though made while considering this aspect of the case arising under Cl. (b) of S. 101 has some bearing on the approach Courts should have while, trying matters like these. At para-28 his Lordship observes that the sanctity of the poll verdict will stand violated if the Tribunal, without the strictest compulsion of statutory provision so, substitutes for an elected representative a Court picked candidate. In the same para, in the end His Lordship says that you must win not only an election petition, but an election itself. I have examined this aspect of the case carefully, and I am of the view that in the circumstance, of the case, it would indeed be risky to deem the votes cast in favour of the 5th respondent as thrown away votes. On that basis I am unable to grant the request of the petitioner to declare him as the successful candidate. Therefore, issue No. 8 is answered in the negative.

In the result the petition is allowed, to the extent mentioned above, with costs. The election of the 5th respondent is declared-as void.