N SUDHAKAR RAO Vs. DUGYALA SRINIVASA RAO

JUDGEMENT

(1.) ELECTION for 263-Chennur Legislative Assembly Constituency in Andhra Praesh was held on 20.4.2004. Petitioner, Dr.N.Sudhakar Rao, first respondent, Dr.Dugyala Srinivasa Rao, and respondents 2 to 5 in E.P. No.3 of 2004 contested the election. Petitioner was in the fray on behalf of Telugu Desam Party and first respondent contested as Telangana Rashtra Samithi (TRS) candidate. Second respondent was Bahujan Samaj Party candidate, third respondent was Praja Party candidate whereas respondents 4 and 5 contested as Independents. The counting was held on 11.5.2004. First respondent secured 67,912 votes and was declared elected as Member of Legislative Assembly (MLA) of Chennur constituency. Petitioner got 59,821 votes and he was nearest rival of the elected candidate. This petition is filed under Sections 80A, 81,100 and 101 of the Representation of the People Act, 1951 (the Act, for brevity) and the Rules made thereunder, challenging the election of first respondent. He also seeks declaration that the election of first respondent is void and for further declaration that the petitioner is duly elected as MLA of Chennur constituency. E.P.No.l of 2004 is filed by Sri P.Saibaba Rao, a voter whose name is allegedly registered at Sl.No.1047, Blocks 3 and 4 of Laxmakkapalli village forming part of Chennur constituency. In this petition, a declaration is sought to declare the election of first respondent as void. Therefore by order dated 13.4.2005 and with the consent of Counsel appearing on both the sides, E.P.Nos.l and 3 of 2004 were clubbed and the evidence was recorded in E.P.No.3 of 2004. This common judgment shall dispose of both the ELECTION Petitions. Pleadings in E.P.No.3 of 2004:

(2.) AS per the notification issued by the Election Commission of India period for filing nominations is from 24.3.2004 to 31.3.2004 before 3.00 pm. AS per election schedule fixed scrutiny of nominations was on 02.4.2004 and for withdrawals 05.4.2004 3.00 pm. The polling was held on 20.4.2004 from 8.00 am to 5.00 pm and the counting took place on 11.5.2004. On that day, the Returning Officer declared in Form No.21-E under Rule 64 of Conduct of Election Rules, 1961, that first respondent was elected. Subsequently, it is noticed that first respondent is disqualified under Section 9-A of the Act, as he is found to have had contracts which were subsisting in respect of execution of certain works undertaken by Government. First respondent is a Special Class Contractor. The execution of the work of laying roads and other constructions was entrusted to him. He did not fully execute these works. Certain parts of the works entrusted to him remained incomplete. There was no termination of contract by mutual consent having effect of discharging first respondent from liability under the contracts. Therefore, he is disqualified for being chosen as MLA.

(3.) FIRST respondent filed written statement in E.P.No.1 of 2004 as well as in E.P.No.3 of 2004. In his written statement filed in E.P.No.1 of 2004, he admits the contract for eight package works under contract dated 23.10.2002. He also admits the contract in relation to the work of formation of embankment of Kakatiya main canal on 28.8.2002. He further admits the entrustment of contracts for road works to YPL. However first respondent denies that he incurred disqualification under- Section 9-A of the Act by reason of subsisting contract entered into by him with Government. His defence on this aspect in relation to the three allegations for three different works is as follows.