ABDUL RAHIMAN Vs. SADASIV TRIPATHY

JUDGEMENT

(1.) THE election to the Orissa Legislative Assembly from the Nowrangpur constituency was held on the 21st February, 1967. 21st of January, 1967 had been fixed as the date for scrutiny of nominations. The persons filing nominations were Sarbasri Abdul Rahiman (petitioner ). Sadasiva Tripathy (Respondent ). Habibulla Khan and Kasi Viswanath Sahu. The nomination of the petitioner was rejected by the Returning Officer on the 22nd of January, 1987. Sri Habibulla Khan withdrew his nomination. In a contest between Sri Sadasiva Tripathy and Sri Kasi viswanath Sahu, the former obtained the majority of votes and was declared elected on 22nd of February, 1967. The petitioner has filed this election petition for a declaration that the election of the respondent is void. In the petition filed under Section 81 of the Representation of the People Act, 1951 (hereinafter to be referred to as the Act), the material facts pleaded may be stated in brief. The petitioner held a contract with the State of Orissa to construct some houses at Nowrangpur under the Rental Housing Scheme. The contract was entered into in March, 1965. After the work was half done, the petitioner met with an accident, on 13th October 1965. He was hospitalised for a long time. He accordingly wrote to the authorities concerned to cancel his contract and to pay up his dues for the building constructed in part. The petitioner's prayer was accepted and an order was passed that the actual work done by the petitioner was to be measured and paid for. Thus there was termination of the contract between the petitioner and the State of Orissa. In March, 1966, the remaining work of the building was given to one Harihar Bissoi by the Public Works Department for construction. Only Government had the liability to make payment of the dues of the petitioner. On the date of the scrutiny of nominations a verbal objection was raised on behalf of the respondent before the Returning Officer that the petitioner had a subsisting contract with the State of Orissa for execution of the houses under the Rental housing Scheme undertaken by the Government and as such he was disqualified under Section 9a of the Act. The petitioner contended that the contract had been terminated and that for the half done work, the Government had the liability to make payments only, and the petitioner was protected by the Explanation to section 9a. As the respondent was the Chief Minister of Orissa then, the Returning officer improperly rejected the petitioner's nomination on an erroneous view of law that the contract subsisted. The election petition has been filed for declaring the election of the respondent as void and for setting it aside.

(2.) THE material facts averred by the respondent in his written statement may be noticed in brief. The petitioner entered into a contract with the State of Orissa for construction of houses under the Rental Housing Scheme. He had constructed the building in part. After meeting with an accident, the petitioner did not ask for cancellation of his contract. On the other hand, he sought for extension of time for completion of work. There was no cancellation of the contract. As the half finished work done by the petitioner was likely to be damaged by rains the Sub-divisional officer (P. W. D.) Nowrangpur gave the work order to Sri Harihar Bossol, without calling for tenders, to do the balance work on job basis. The action of the S. D. O. did not meet with the approval of the Executive Engineer who was the only competent authority to issue the work order. The Executive Engineer refused to make payments to Sri Harihar Bissoi for some work done by him, The work order given by the S. D. O. to Sri Harihar Bissoi cannot be treated as a termination of the contract with the petitioner The order of the authorities to make measurement of the half finished work of the petitioner and to make payment for the same was on account of sympathy for the petitioner who met with an accident and does not amount to termination of the contract. On the 31st of March, 1967, the petitioner applied for extension of time to enable him to complete his work and he further prayed for cancellation of the tenders given by other contractors for completing the incomplete work. Thus, after the accident, the petitioner did not express his inability to execute the work but was willing to continue execution of the same and asked for payment of advance in December, 1966. Sri Harihar Bissoi is a petty contractor and was the Benamadar of the petitioner. A tentative final bill prepared in respect of the petitioner's work was not accepted by him despite persuasion by the Executive Engineer. On the 19th of January, 1967 a telegram was sent to the petitioner demanding return of 435 bags of cement and 7. 9 tons of iron rods issued to him in course of the work which he was bound to return in case he wanted to withdraw from the contract. The petitioner did not return the same till 20th of January, 1967, the date of filing the nomination or on the date of scrutiny, though the Executive Engineer. Koraput gave him all facilities to obtain a clearance certificate. The Petitioner's nomination was rightly rejected as he had a subsisting contract. The allegation that the petitioner's nomination was rejected as the respondent was the Chief Minister of Orissa is malicious.

(3.) IT would be seen from the pleadings of the parties that it was the common case of both that the petitioner entered into a contract with the State of Orissa for construction of some houses under the Rental Housing Scheme. The controversy was raised merely on the question whether the contract had terminated or was subsisting on the date of scrutiny of nominations. In the written statement no averment was made that there was a subsisting contract with regard to construction of a bridge on Mydalpur road. In paragraph 12 of the written statement, there was a reference to the bridge on Mydalpur road in respect of which it was alleged that the tender of the petitioner was accepted by the Superintending Engineer, Berhampur. Mr. Sahu, the learned Advocate for the respondent conceded that the acceptance was not by the Superintending Engineer, berhampur but by the Executive Engineer, Koraput. In evidence though some questions were put here and there regarding the construction of the culvert on mydalpur road, no documents were called for to prove that a contract subsisted in respect of the construction of a culvert on Mydalpur road. Though the petitioner had also a contract relating to construction of a culvert on the Mydalpur road, it was not a part of the contract relating to construction of houses under the Rental housing Scheme. It is conceded by Mr. Sahu that at the time of drafting the written statement, he had a misconception that the contract for construction of the culvert was under the Rental Housing Scheme. The learned Advocates for the parties concede that they are two different contracts. The contract for the construction of the culvert is separate and distinct from the contract relating to the construction of houses under the Rental Housing Scheme. As no dispute was raised in the written statement regarding subsistence of the contract relating to the construction of culvert, no evidence has been led on this point excepting casual questions put to witnesses here and there. Mr. Sahu also did not call for the relevant documents relating to the contract for the construction of the culvert. It is accordingly made clear that there is no controversy in this case that the contract relating to the construction of the culvert subsisted. That topic is foreign to the subject matter of this litigation. The only question to be dealt with in this case is whether the contract relating to the construction of houses under the Rental housing Scheme subsisted or not on the date of the scrutiny of nominations.