T M ATHIKESAVALU NAIDU Vs. SEKAMBARA MUDALIAR

JUDGEMENT

(1.) THIS is an application for issue of a writ of certiorari and for quashing the order of the Election Commissioner of Vellore in O.P. No. 11 of 193S. The petitioner and the first respondent were both candidates for election as member of the District Board of North Arcot. The first respondent in this petition was the petitioner before the Election Commissioner. His nomination paper had been rejected by the Election Officer on the ground that he was interested in a subsisting contract with the Board with the result that the only other candidate, the present petitioner, was declared elected. The validity of that election was questioned by the first respondent whose nomination had been rejected and the Election Commissioner upheld his petition for setting aside the election of the petitioner. The Election Commissioner, that is the Subordinate Judge of Vellore held that the first respondent was not interested in a subsisting contract with the Board on the date of nomination and accordingly allowed the petition. As a result a fresh election was ordered to be held and the present petitioner has come to this Court for issue of a writ of certiorari and for quashing the order of the Election Commissioner; in this connection there was an application for stay made by the petitioner and an interim stay was ordered as regards the publication of the list of valid nominations. THIS interim stay was ordered on the 15 December, and the petition was directed to be posted for hearing as early as possible. The petition has now been argued before me and the main question in the petition is whether the view of the Election Commissioner that the first respondent was not interested in a subsisting contract with the Board is wrong. The contract that was relied upon as one which disqualified the first respondent is Ex. A. That is a contract in respect of a certain major work. That contract recites that it had been agreed that the contractor should execute his bond to the President in a sum of Rs. 100 as security for the due performance by him of this contract and that he had accordingly done so. It then recites the actual terms of the contract. So far as this contract is concerned, it is common ground that the work to which it relates had been completely performed and completely paid for by the Local Board before the date of nomination, so that really nothing remained to be done by either party to the contract. It cannot therefore be said to have been a subsisting contract at the time. Reliance was placed before the Election Commissioner on the decision of a Bench of the Calcutta High Court in Satyendrakumar Das V/s. Chairman of the Municipal Commissioners of Dacca (1930) I.L.R. 58 Cal. 180. That is referred to by the Election Commissioner in his order and the opinion is expressed that the view adopted in Satyendrakumar Das V/s. Chairman of the Municipal Commissioners of Dacca (1930) I.L.R. 58 Cal. 180 does not really affect the present case because in the present case both parties to the contract had performed what they had contracted to perform. The learned Commissioner points out that the contract account has been closed though the security deposit is kept in a separate account as required by the rules. The position was that, if and when an audit objection is made to any payment made under the contract, the amount covered by the objection could be made good from the amount of the deposit; otherwise the deposit was to be returned to the depositor. The learned Commissioner was of opinion that this meant only that certain payments might be open to question later on in audit and not that the contract itself as such was subsisting. It must be mentioned at the outset that in the corresponding section of the Bengal Municipal Act, 1884, namely, Section 57 the adjective subsisting is not to be found qualifying the word contract as is found in Section 55(2)(c) of the Madras Local Boards Act. THIS word makes, a certain amount of difference because it emphasises the point of view that it is only the existence of a subsisting contract at the time of the nomination that disqualifies the candidate and not the existence of a contract which has ceased to subsist. Obviously a contract which has ceased to be enforceable and under which no claim could be made by either party cannot be regarded as a subsisting contract. In the present case, so far as Ex. A is concerned, that is, the contract in respect of a certain major work, the rights of the parties have been determined and if there is any claim that can be made by the Board, it is only under the security agreement and only as against the amount lying in deposit. But that is not the contract which was alleged to be the contract which disqualified the first respondent. That contract is really different from the contract evidenced by Ex. A. It purports to have come into existence earlier and it must be regarded as subsisting till the audit is complete and no objection is made by the audit department. Though in the first instance security was offered and taken for the due performance of the contract, as the contract has since been fully performed there is at present no possible claim except as regards any excess payment discovered during audit. It has nothing to do with the performance of the work. It cannot be said that any contract relating to the performance of the work was subsisting on the date of nomination. The only right which the Board then had was to recover any amount objected to in audit from the security deposit and nothing more. So far as the performance of the work was concerned, it had been completed to the satisfaction of the Board and no claim could be made on the ground that the contract had not been duly performed. The subsisting contract is therefore only one which relates to the payment of money. It is a contract whereby the Board is permitted to recover from the deposit made by the first respondent such amount as is covered by any objection that may be made by the audit department. A money claim like this-and that too not a claim that has actually accrued but a claim that may possibly be made-is in my opinion not a contract of the kind that is contemplated in Section 55(2)(c). It must be deemed to be covered by the proviso No. 2 to that sub-section. For instance, supposing a tax-payer has a claim for refund from a Municipality, that would not constitute a subsisting contract which disqualify the tax-payer from standing as a candidate in an election. On the other hand, supposing a Municipality has a claim for recovery of the cost of some work against a particular candidate, the existence of such a claim would not disqualify the candidate. A mere claim to recover money by the Municipality from the candidate cannot be regarded as amounting to a contract of the kind referred to in Section 55(2)(c). The fact that the claim when made could be satisfied without going to Court by drawing on the amount lying in deposit does not make any material difference for our present purpose. We cannot regard the position as between the Local Board and the first respondent as one which disqualifies a candidate merely because it was possible that an objection might be made by the audit department and the amount covered by the objection might have to be recovered from the security deposit. The reason for the rule, of disqualification also does not apply to the facts of the present case. The validity of an objection made by the audit department is not within the competence of the local Board to decide. The decision is either with the audit department or with the Court which may have to adjudicate upon it if a surcharge is made and is objected to by the person or persons surcharged; The Local Board as such cannot legally decide the validity of any objection and there could thus be no real conflict between the interest and the duty of any particular member against whom a claim may be made by the local body. It may as well be contended that because a candidate has filed a suit against a Municipality for a sum of money or the Municipality has filed a suit against a candidate for a sum of money the candidate is disqualified. I am of opinion, therefore, that the view of the learned Election Commissioner is substantially right. It is in my opinion unnecessary to quote authority on this point, nor is it necessary to consider the other question whether there has not been a substantial assignment of even the right of the first respondent to receive the security amount. The decision of the Election Commissioner not being shown to be in contravention of any principle of law cannot be questioned in certiorari proceedings. There is no other question raised before me except this question of law that arose for determination by the Election Commissioner, and his decision is in my opinion not only not in contravention of law but is in consonance with law and in accord with a reasonable interpretation of the disqualifying clause which he had to construe. The petition therefore fails and is dismissed with costs, the advocate's fee being fixed at Rs. 100 The interim stay order dated 15 December, 1938 and made in C.M.P. No. 5376 of 1938 is cancelled.