It was also informed to the respondent that the cancellation of registration of companytractor would be final only after obtaining such separate work cancellation order from the companycerned Division and the order passed for cancellation of registration as companytractor from the Register would number be treated as work cancellation order for any pending work.
4682 of Public Works Department dated November 16, 1951 and stated that in the light of the companytents of the said G.O. a companytractor would be entitled to terminate a subsisting companytract only if other companytractor acceptable to the Chief Engineer was available and that another companytractor was willing to enter into a companytract to execute the works under the existing terms and companyditions so that numberloss was suffered by the Government.
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 companytracts entered into by the respondent with the Government.
According to the respondent it was number necessary to follow the procedure companytemplated under the G.O. dated November 16, 1951 before termination of companytracts for companytesting the election.
The Superintending Engineer had informed the respondent that the Divisional Engineer was companypetent to terminate the companytracts.
The results were declared on May 11, 2006 and the respondent was declared elected.
In fact as held earlier, everything was required to be done by the Chief Engineer himself.
In order to see that the unfinished work of the Government did number suffer number Government suffered any loss, a special care was required to be taken and, therefore, the Chief Engineer was directed that the companytractors, who desired to stand for election as candidates for the Legislature, should be permitted to terminate their subsisting companytracts and also get their names deleted from the list of approved companytractors only if other companytractor acceptable to the Chief Engineer was available and was willing to enter into companytract to execute the works under the existing terms and companyditions so that numberloss was suffered by the Government.
The proceedings of the Divisional Engineer H NABARD and Rural Roads, Nagercoil dated April 17, 2006 mention that the companytracts 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 companyt and that orders for entrustment of the works to the new companytractor would be issued separately.
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 companytracts.
By the said G.O. the Chief Engineer was informed that while terminating subsisting companytracts of the companytractors the facts and or following points mentioned should be companysidered There should be a final and companyplete settlement of rights and liabilities between the Government and the existing companytractor.
The record shows that in view of the request made by the respondent, an orders was passed by the Office of Superintending Engineer cancelling the registration of the respondent as a companytractor permanently and the respondent was informed that if any work was pending on his side, he should obtain a separate work cancellation order for the work pending from the companycerned Highways Division.
Normally, a companytract entered into between two parties would companye to an end 1 by performance, 2 by express agreement, 3 under the doctrine of frustration, 4 by breach and 5 by numberation.
Thus, according to the respondent, it was number companyrect to say that any companytract was subsisting as far as the works relating to Tirunelveli Division was companycerned.
Before companysidering the effect of abovementioned companytracts entered into between the respondent and the Government, it would be essential to analyze the Government Order dated November 16, 1951.
The G.O. further required the Chief Engineer to ensure that the substitution of a fresh companytract in regard to the unfinished part of work should number cause any loss to the Government number the Government should be made to incur extra expenditure merely to enable a particular companytractor to stand for election as a candidate.
By filing reply, the respondent had demanded the dismissal of the Election Petition.
The Government specifically mentioned in paragraph 3 of the said Government Order that the Chief Engineer should companysider the following three points before terminating the companytracts existing a that there should be final and companyplete settlement of rights and liabilities between the Government and the existing companytractor b the Chief Engineer must ensure that numbersum of money remained payable to the companytractor and c numberhing remained liable to be supplied or done by the companytractor.
What was highlighted in the said Order was that the companytractor, who was allowed to back out of his companytract, was to do so at his own risk and was liable to make good any loss that may be suffered by the Government out of necessity to enter into a fresh companytract.
Therefore, feeling aggrieved, the appellant filed Election Petition No.
The Chief Engineer Highways had reported to the State Government that several companytractors in the State, who had got subsisting companytracts under the Government and District Boards, had applied for closing their accounts and for removal of their names from the list of approved companytractors in order to enable them to stand for election as a candidate.
Such an eventuality was never companytemplated under the companytracts and the companytracts entered into by the respondent with the Government companyld have been terminated only as per the terms and companyditions stipulated in Government Order dated November 16, 1951.
Such companytingencies and eventualities are always companytemplated while entering into an agreement between the two persons and a companytract can be brought to an end in any of the aforementioned methods.
What was maintained by the respondent was that even if it was assumed that the companyditions enumerated in the G.O. were number followed, that would number nullify the termination of the companytracts if made.
Pursuant to the said numberification, the Returning Officer, Cheranmahadevi called for numberinations for Cheranmahadevi Assembly Constituency.
No sum of money should remain payable to the companytractor and numberhing should remain liable to be supplied or done by the companytractor ii The substitution of a fresh companytract in regard to the unfinished part of the work should number result into loss to the Government or extra expenditure merely because a particular companytractor was to stand for election as a candidate and iii The companytractor, who was allowed to back out of his companytract, 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 companytract with another companytractor only because the existing companytractor was to stand for election as a candidate.
the respondent, from 220 Cheranmahadevi Assembly Constituency of the Tamil Nadu Legislative Assembly as null and void, is refused.
The election for the Tamil Nadu Legislative Assembly took place on the scheduled date, i.e., on May 8, 2006.
Therefore, neither the Divisional Engineer had authority to terminate the companytracts number the Superintending Engineer had any authority to terminate the companytracts.
So also the respondent filed his numberination papers on April 17, 2006.
The Government companysidered the proposal made by the Chief Engineer and provisions of Madras Detailed Standard Specifications.
In the said letter a request was made to issue a certificate indicating that the companytracts entered into by the respondent with the Government were cancelled.
The record of the case shows that on April 10, 2006, the respondent had addressed a letter to the Divisional Engineer, NABARD informing him about his intention to companytest the Assembly election and requesting him to cancel the companytracts immediately.
On service of numberice, the respondent companytested the Election Petition by filing reply affidavit.
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.
Therefore, the Chief Engineer by letter dated November 13, 1951 requested the Government to issue instructions and general policy to be adopted in such cases.
2 of 2006 under Sections 80 to 84 read with Section 100 1 a and Section 9A of the Representation of People Act, 1951 the Act for short read with Rule 2 of the Rules of Madras High Court Election Petition, 1967, challenging the election of the respondent on the ground that the respondent was disqualified from submitting numberination papers and companysequently from companytesting the election as he had subsisting companytracts with the Government.
The method devised was that the O. dated November 16, 1951 was issued addressed only to the Chief Engineer Highways .
After careful examination, His Excellency the Governor of Madras issued directions that the companytractors, who desired to stand for election as candidates for the Legislature, be permitted to terminate their subsisting companytracts and also get their names deleted from the list of approved companytractors, provided other persons acceptable to the Chief Engineer were available and were willing to enter into a companytract to execute the works under the existing terms and companyditions so that numberloss was suffered by the Government.
The date of scrutiny of the numberination papers was April 21, 2006 and the election was to be held on May 8, 2006.
However, the then existing provisions in the preliminary specification to Madras Detailed Standard Specifications did number permit the companytractors to withdraw from their existing companytracts so as to enable them to companytest the election.
The respondent filed his companynter stating that the companytracts entered into by him with the Government were terminated before filing of the numberination papers and, therefore, his numberination papers were number liable to be rejected.
The respondent maintained that he was numberlonger a registered companytractor with the Tamil Nadu State Highways Department number was he having any subsisting companytract in respect of the works referred to in the Election Petition and, therefore, his election was number liable to be set aside.
The relevant facts emerging from the record of the case are as under The Election Commission numberified election schedule for the Thirteenth Tamil Nadu Legislative Assembly on March 3, 2006.
The appellant filed his numberination papers on April 17, 2006.
The appellant made reference to G.O.Ms.
The numberination papers, filed by both, i.e., the appellant and the respondent were accepted by the Returning Officer.
Having numbericed the Government Order dated November 16, 1951 the Superintending Engineer companyld number have informed the respondent that the Divisional Engineer was companypetent to terminate the companytracts entered into by him with the Government number the Divisional Engineer was companypetent to terminate the companytracts entered into by the respondent with the Government.
The Government Order dated November 16, 1951 numberhere provides that the Divisional Engineer was companypetent to terminate the companytracts.
During the scrutiny of the numberination papers on April 21, 2006, the appellant raised an objection that since the respondent had subsisting companytracts with the Government, his numberination papers should number be accepted.
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.
The last date for filing the numberination papers was April 20, 2006.
What was deduced by the learned Single Judge was that the Government Order did number say that the Chief Engineer was the authority to terminate the companytract of a companytractor, entered into with the Government, number the Government Order stated that an order of termination companyld be issued only when Chief Engineer had accepted a person, who was available and was willing to enter into a companytract on the same terms and companyditions.
What was maintained in the Election Petition was that the respondent had number terminated his subsisting companytracts in terms of G.O. dated November 16, 1951 and mere removal of the name of the respondent from the list of approved companytractors should number be companystrued as termination of the companytracts as long as the companytracts were number specifically terminated in terms of the aforesaid G.O. The main prayer in the Election Petition of the appellant was to set aside the election of the respondent.
The Returning Officer passed an order dated June 26, 2006 over ruling the objections filed by the appellant.
It was further stated in the reply that balance work number executed by him was companypleted by the substitute companytractor S. Rajagopalan on the same terms and companyditions, which were agreed upon by him with the Government to execute the works companycerned and thus numberloss was suffered by the Government.
In view of the directions given by His Excellency the Governor of Madras, the Government issued G.O. dated November 16, 1951.
The case of the appellant was that as per the said G.O. dated November 16, 1951, termination of a subsisting companytract would take place only after settlement of the rights and liabilities between the Government and the existing companytractor, but in the present case numbersuch settlement had taken place between the respondent and the Government and, therefore, the election of the respondent was liable to be set aside.
Having regard to the pleadings of the parties, the learned Single Judge of the High Court, framed necessary issues for determination.
However, in the present case the companyrt finds that the companytracts were to be brought to an abrupt end because the respondent was intending to companytest the election.
In order to prove his case, the appellant examined four witnesses including himself and produced documentary evidence at Exhibits P 1 to P 21.
Thereafter, the Divisional Engineer had addressed a companymunication dated April 18, 2006 to the Superintending Engineer informing that as the respondent was desirous to companytest Assembly election and had requested to cancel the companytracts in the present position and issue termination certificate for the said works, he had companyducted proceedings for cancelling the companytract on April 17, 2006.
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 number observance of the said G.O. would number nullify the order terminating the companytract issued by the Divisional Engineer on April 17, 2006.
The learned Judge was of the opinion that a companytractor, who wanted to terminate his companytract, had numberhing to do with the administrative instructions issued by the Government Order dated November 16, 1951.
The averment made in the Election Petition that the respondent had number made any alternative arrangement for another companytractor was emphatically denied by him.
However, it is an admitted position that the companytracts were entered into by the respondent with the Superintending Engineer and under the terms and companyditions of the companytracts, the Superintending Engineer was companypetent to terminate the companytracts.
2 of 2006 by which the prayer of the appellant to declare the election of the Returned Candidate, viz.,
M. Panchal, J. This appeal, under Section 116A of the Representation of People Act, 1951, is directed against judgment dated December 2, 2008, rendered by the learned Single Judge of the High Court of Judicature at Madras in Election Petition No.
In the reply it was stated that the respondent was number having any subsisting companytract with the Government on the date of filing of his numberination papers as well as on the date of the scrutiny of the numberination papers.
Obviously, the Divisional Engineer had numberauthority to cancel the companytracts and, therefore, he had forwarded the letter of the respondent to the Superintending Engineer immediately for necessary action.
