VERY IMPORTANT POINT
Contrary to decision of High Court conclusion of the Supreme Court is that the returned candidates suffered a disqualified u/s 9A of Representation of People Act, 1951 for contesting the election as the contract between him and the Irrigation Deptt. of the State of Karnataka subsisted for 10 of remaining work. His election is, therefore, liable to be set aside on the ground made out u/s 100(2)(a) of the Act.

Headnote:Representation of People Act, 1951-Section 116A-Appeal under against decision of High Court upholding election of returned candidate of Humnabad seat of State of Karnataka Legislative Assembly Constituency No. 5-Returned candidate-Respondent No. 1 got 35438 votes as against the present appellant who got 31,868 votes-Election of returned candidate challenged on the sole ground that on the date of election he was disqualified to contest the election as there subsisted a contract between him and the State of Karnataka for construction of Right Bank Canal under the project of Irrigation Deptt. u/s 100(2)(a)-Whether correct? (Yes)-High Court reversed-Appeal allowed-[Representation of People Act, 1951-Sections 9A Expl. 2 100(2)(a)].
Held : On consideration of evidence and case law, thus, we find that there is neither unilateral nor mutual termination of subsisting contract by respondent No.1. In the affidavit dated 13th August, 1999, it was stated that his application or request for termination of contract was "under consideration" of the department. Unless there was acceptance of the said request by the department, it could not be said that the contract stood terminated by mutual consent. The department accepted the request made by the respondent only in September, 2000. To support the case of unilateral termination of the contract, as advanced by the learned counsel on behalf of the returned candidate before us, there is nothing on record except the pleas developed step by step which varied from the stage of filing written statement to oral evidence and thereafter at this appellate stage. Thus, on appreciation of documentary and oral evidence on record, we find that the High Court committed serious error in coming to the conclusion that the letter and the affidavit mentioned above were submitted by the respondent to the office of Irrigation Department of the State and resultantly there was unilateral or bilateral termination of the contract. Our conclusion is that the returned candidate suffered a disqualification under Section 9A of the act for contesting the election as the contract between him and the Irrigation Department of State of Karnataka subsisted for 10 per cent of remaining work. His election is, therefore, liable to be set aside on the ground made out under Section 100 of the Act. In the result, this appeal succeeds and his allowed. The order of the High Court dated 10th April, 2001 passed in Election Petition No. 13/99, is hereby set aside. The election of the respondent as Returned Candidate to the Karnataka Legislative Constituency No.5, Humnabad is declared to be void. The necessary intimation of the result of this appeal be sent to the Election Commission, the Speaker or the Chairman of the State Legislature of Karnataka State in accordance with Sub-section (2) of Section 116-C for taking further steps in accordance with law. The appellant shall be entitled to the costs of the petition. Counsel s fee- Rs.10,000/- if pre-certified. (Paras 40 to 44)

JUDGMENT

Dharmadhikari, J.-This is an appeal under Section 116A of the Representation of People Act 1951 (for short the Act ) against the order dated 10th April 2001 passed by the High Court of Karnataka at Bangalore dismissing Election Petition No.13/99 filed by the present appellant challenging election of the Returned Candidate (Respondent No.1 herein) to the Humnabad seat of Karnataka Legislative Assembly Constituency No.5. The Returned Candidate - Respondent No.1 got 35,438 votes as against the present appellant who got 31,868 votes.

2. The election of the Returned Candidate has been assailed on the sole ground that the Returned Candidate on the date of election was disqualified to contest the election as there subsisted a contract between him and the State of Karnataka for construction of Right Bank Canal under the project of Irrigation Department. The aforesaid ground of disqualification is covered by Section 100(1)(a) read with Section 9A and Section 67A of the Act. The aforesaid three Sections of the Act are reproduced hereunder for ready reference:-

"Section 100. Grounds for declaring election to be void.-(1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion -

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [or the Government of Union Territories Act, 1963 (20 of 1963)]; or

(b) ............

(d) ............

Section 9A. Disqualification for Government contracts, etc.-A person shall be disqualified if, and for so long as, 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.

Explanation.-For the purposes of this section, where a contract has 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.

Section 67A. Date of election of candidate. For the purposes of this Act, the date on which candidate is declared by the returning officer under the provisions of section 53 or section 66, to be elected to a House of Parliament or of the Legislature of a State shall be the date of election of that candidate.

3. The appellant s case pleaded and sought to be proved in the Election Petition before the High Court was that on the date of election i.e. 5.9.1999, there existed a contract between the Returned Candidate as Class I Government Contractor with the Government of Karnataka for the construction of Right Bank Canal including C.D. works from Km.45 to 46 Lower Mullamari Project of the Irrigation Department. This fact is not in dispute that the tender submitted for the Contract by the respondent was accepted by the Competent Authority i.e. Chief Engineer, Irrigation Department vide his letter dated 5.11.1996. The period fixed for completion of contract was six months including the monsoon season. It is also not disputed by the respondent that even after the expiry of stipulated period of six months, respondent No.1 executed the works under the contract upto 11.8.1999 and was paid for it. Respondent No.1 claims to have submitted on 11.8.1999 an application to the Executive Engineer requesting that he be granted "No dues Certificate" as he intended to contest the Assembly Elections.

4. The appellant s Election Petition before High Court was based on the letter dated 5.11.1999 (Ex.P.6) of the Executive Engineer, IPC, Division No.3, Sulepeth, which he had received in reply to his query on the existence or otherwise of a contract between respondent No.1 and the State of Karnataka. The contents of the said reply dated 5.11.1999 received by the appell

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