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C.G. Janardhanan Vs. Joseph - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKerala High Court
Decided On
Case NumberElection Appeal No. 3 of 1957
Judge
Reported inAIR1958Ker169
ActsRepresentation of the People Act, 1951 - Sections 7(1), 9(1) and 100(1); General Clauses Act, 1897 - Sections 3(58) and 3(60); Contract Act, 1872 - Sections 51
AppellantC.G. Janardhanan
RespondentJoseph
Appellant Advocate M. Madhavan Nair, Adv.
Respondent Advocate V.K.K. Menon,; C.S. Padmababha Iyer and; G.V. Ramanan
DispositionAppeal dismissed
Cases ReferredIn Chatturbhuj Vithaldas v. Moreshwar Parashram
Excerpt:
.....appeal filed challenging order by which election of appellant declared void - appellant entered in works contract with government - accounts of contracts not settled - contract treated as subsisting till payments get cleared - conditions of section 100 fulfilled - election of appellant held void under section 100. - - and (b) as the contracts had been broken prior to 29-1-1957. 19. the first submission is clearly negatived by the decision of the supreme court in air 1954 sc 236 (a), wherein it was specifically held that a contract -for the supply of goods -cannot be considered as closed until all payments had been made. 25. in the light of what is stated above there is no reason for holding that the tribunal was wrong in declaring the election of the appellant to be void under..........19-2-1946 : (2) ext. p-50 dated 24-7-1947: and (3) ext. p-11 dated 25-10-1947.all of them were 'works contracts' and it is common ground that they were made by the appellant with the government of the cochin state. it is also agreed that the works were completed prior to 1-11-1056.8. the contentions of the appellant are :1. that the expression 'appropriate government' in section 7(d) of the representation of the people act, 1951, denotes the government of kerala in the context of this case and that when the expression is so construed the disqualification under clause (d) of section 7 is not attracted; and2. that even if the three contracts are considered as contracts capable of attracting the disqualification under clause (d) of section 7, they ceased to exist long before 29-1-1957.....
Judgment:

M.S. Menon, J.

1. This is an appeal under Section 116-A of the Representation of the People Act, 1951. The appellant was the 1st respondent in Election Petition No. 277 of 1957 and the appeal is against the order of the Election Tribunal, Trichur, declaring his election to the Legislative Assembly of the Kerala Slate from the Chalakudi Constituency No. 64, to be void under Section 100(1)(a) of the Representation of the People Act, 1951.

2. Section 100 of the Representation of the People Act, 1951, details the grounds for declaring an election to be void. There are two sub-sections to that section and Sub-section (1) is subject to the provisions of Sub-section (2). According to Sub-section (1) (a) of that section, if the Tribunal is of opinion :

'that an 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',

the Tribunal shall declare the election of the returned candidate to be void.

3. Section 67-A -- inserted by Section 37, of Act, 27 of 1956 -- provides that the date of the election of a candidate shall be the date on which he is declared to be elected by the returning officer :

'For the purposes of this Act, the date on which a candidate is declared by the returning officer under the provisions of Section 53, Section 54, Section 55-A or Section 66, to be elected to a House of Parliament or of the Legislature of a State or to the electoral college of a Union territory shall be the date of election of that candidate.'

4. In Chatturbhuj Vithaldas v. Moreshwar Parashram, AIR 1954 SC 236 (A), the Supreme Court said:

'Now the words of the section are 'shall be disqualified for being chosen'. The choice is made by a series of steps starting with the nomination and ending with the announcement of the election. It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen.'

5. The last date for making nominations was 29-1-1957. The result of the election was declared on 16-3-1957.

6. Section 7 of the Representation of the People Act, 1951, deals with the disqualifications for membership and the disqualification alleged in Election Petition No. 277 of 1957 is the one specified in Clause (d) of that section. The relevant portion of Section 7 reads as follows:

'A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State

(d) if, whether by himself or by any person or body of persons in trust for him 01 for his benefit or on his account, he has any share or interest in a contract for the supply of goods to, or for the execution of any works or the performance of any services undertaken by, the appropriate Government.'

7. The three types of contracts hit by Clause (d) of Section 7 of the Representation of the People Act, 1951, are :

1. contracts for the supply of goods to the appropriate Government;

2. contracts for the execution of works undertaken by the appropriate Government; and

3. contracts for the performance of services undertaken by the appropriate Government;

and the three contracts on which reliance is placed are:

(1) Ext. P-36 dated 19-2-1946 : (2) Ext. P-50 dated 24-7-1947: and (3) Ext. P-11 dated 25-10-1947.

All of them were 'works contracts' and it is common ground that they were made by the appellant with the Government of the Cochin State. It is also agreed that the works were completed prior to 1-11-1056.

8. The contentions of the appellant are :

1. that the expression 'appropriate Government' in Section 7(d) of the Representation of the People Act, 1951, denotes the Government of Kerala in the context of this case and that when the expression is so construed the disqualification under Clause (d) of Section 7 is not attracted; and

2. that even if the three contracts are considered as contracts capable of attracting the disqualification under Clause (d) of Section 7, they ceased to exist long before 29-1-1957 and cannot, as a result, be used against the appellant.

9. Contention No. (1). Section 7 of the Representation of the People Act, 1951, occurs in Chapter III of Part II of the Representation of the People Act, 1951, and the expression 'appropriate Government' is defined for the purposes of the said Chapter in Section 9(1)(a) of that Act as follows ;

' 'appropriate Government' means in relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and in relation to any disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative Council of a State, the State Government'.

The expression 'State Government' is not defined in the Representation of the People Act, 1951. The definition of that expression given in Section 3(60) of the General Clauses Act, 1897 (as adapted and modified by the Adaptation of Laws (No. 1) Order, 1956) reads as follows:

'State Government'--

(a) as respects anything done before the commencement of the Constitution shall mean, in a Part A State, the Provincial Government of the corresponding Province, in a Part B State, the authority or person authorised at the relevant date to exercise executive government in the corresponding Acceding State and in a Part C State, the Central Government;

(b) as respects anything done after the commencement of the Constitution and before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a Part A State, the Government, in a Part B State, the Rajpramukh, and in a Part C State the Central Government;

(c) as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union territory, the Central Government; and shall, in relation to functions entrusted under Article 258-A of the Constitution to the Government of India, include the Central Government acting within the scope of the authority given to it under that article.'

10. The definition of the expression 'State' as given in Section 3(58) of the General Clauses Act, 1897, as adapted and modified by the Adaptation of Laws (No. 1) Order, 1956, is:

'State'--

(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and

(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory.'

and the expression 'Part A State', 'Part B State' and Part C State' as given in Section 3(41) of that Act as so amended and modified:

'Part A State' shall mean a State for the time being specified in Part A of the First Schedule to the Constitution as in force before the Constitution (Seventh Amendment) Act, 1956, 'Part B State' shall mean a State for the time being specified in Part B of that Schedule and 'Part C State' shall mean a State for the time being specified in Part C of that Schedule or a territory for the time being administered by the President under the provisions of Article 243 of the Constitution.'

11. 'Undertake' means 'bind oneself to perform, make oneself responsible for (Concise Oxford Dictionary) and the question for determination is whether the works covered by the three contracts can be considered as works undertaken by an 'appropriate Government' for the purposes of Section 7(d) of the Representation of the People Act, 1951.

12. The Cochin and Travancore States executed their Instruments of Accession to the Dominion of India in August 1947. In May 1949 the Rulers of the two States executed a Covenant of Integration and the United State of Travancore and Cochin came into being. The Instrument of Accession to the Dominion of India executed by the Rajpramukh of the United State of Travancore and Cochin followed on 14th July 1949 and it was accepted by the Governor General of India on 15th August 1949. That Instrument of Accession cancelled the Instruments of Accession executed inAugust 1947.

13. Subsequent to the Instrument of Accession of 14th July 1949 -- on 24th November 1949 -- the Rajpramukh issued a Proclamation by which he declared and directed:

'That the Constitution of India shortly to be adopted by the Constituent Assembly of India shall be the Constitution for the United State of Travancore and Cochin as for the other parts of India and shall be enforced as such in accordance with the tenor of its provisions :

That the provisions of the said Constitution shall as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State.'

By the Proceedings of the Government of the United State of Travancore and Cochin dated 24th January 1950 the name of the State was changed into Travancore-Cochin State with effect from 26th January 1950. The last paragraph of the Proceedings reads as follows : 'This State is described as 'Travancore-Cochin State' in the Constitution of India which comes into force on the 26th January 1950. All concerned are hereby informed that, with effect from the 26th January 1950, this State will be known as 'Travancore-Cochin State' and this Government as 'Travancore-Cochin Government'. Heads of Departments and Offices are requested to give effect to this change accordingly.'

Then came the Constitution by which the State of Travancore-Cochin became the eighth State in Part B of the First Schedule, the States Reorganization Act, 1956, and the formation of the State of Kerala on the 1st November 1956.

14. Such in brief are the main incidents in the constitutional evolution of the State of Kerala in so far as it is material for the purposes of this case.

15. In the light of the definition of the expression 'State Government' given in Section 3(60) of the General Clauses Act, 1897, the 'appropriate Government' or 'State Government' cannot be considered as an identical institution at all times. Different governments at different times will constitute the 'appropriate Government' and as far as the Travancore and Cochin States are concerned the 'appropriate Government' will be the separate Governments of those States till the Covenant of Integration, the common Government of Travancore-Cochin -- for a time known as the Government of the United State of Travancore and Cochin -- till 1-11-1956, and the Government of Kerala on and from that date.

16. The definitions in the General Clauses Act, 1897, will of course apply to the Representation of the People Act, 1951, only in the absence of anything repugnant in the subject or context which precludes such an application. We are, however, unable to see any repugnancy, and we must hold that the three contracts, Exts. P-11, P-36 and P-50, were contracts for works undertaken by an 'appropriate Government' within the meaning of Section 7(d) of the Representation of the People Act 1951, event though those works were as a matter of fact undertaken and completed prior to the formation of the State of Kerala on 1-11-1956.

17. Such being our view it is unnecessary to consider the submission of counsel for the respondent to the effect that he can substantiate the above conclusion even apart from the definition of the expression 'State Government' in Section 3(60) of the General Clauses Act 1897, and that submission is not considered in this judgment.

18. Contention No. 2. According to counsel for the appellant none of the three contracts can be considered as subsisting at the relavant time:

(a) as the works had already been completed and only payment remained to be made; and

(b) as the contracts had been broken prior to 29-1-1957.

19. The first submission is clearly negatived by the decision of the Supreme Court in AIR 1954 SC 236 (A), wherein it was specifically held that a contract -- for the supply of goods -- cannot be considered as closed until all payments had been made. The judgment deals with the matter as follows:

'The question then is, does a contract for the supply of goods terminate when the goods are supplied or does it continue in being till payment is made and the contract is fully discharged by performance on both sides? We are of opinion that it continues in being till it is fully discharged by performance on both sides.

It was contended, on the strength of certain observations in some English cases, that the moment a contract is fully executed on one side and all that remains is to receive payment from the other, then the contract terminates and a new relationship of debtor and creditor takes its place. With the utmost respect we are unable to agree. There is always a possibility, of the liability being disputed before actual payment is made and the vendor may have to bring an action to establish his claim to payment. The existence of the debt depends on the contract and cannot be established without showing that payment was a term of the contract.

It is true the contractor might abandon the contract and sue on 'quantum meruit' but if the other side contested and relied on the terms of the contract, the decision would have to rest on that basis. In any case, as we are not bound by the 'dicta' and authority of those cases, even assuming they go that far, we prefer to hold that a contract continues in being till it is fully discharged by both sides.'

20. It is admitted that amounts are outstanding, that the accounts of the three contracts have not yet been settled, and in the light of the decision cited above we must hold that those contracts should be treated as subsisting so long as payments remain to be made and the amounts payable are still in controversy and await a settlement.

21. There is no doubt that the appellant broke the contract Ext P 11 long before 29-1-1957. He did not complete the work under that contract within the time stipulated and he wrote to the Cheif Secretary on 15-12-1954 praying for more time to complete the work. The prayer was not allowed. Ext. P 22 reveals that tenders for the unfinished work were invited during April 1954 and Ext. P 24, that the remaining work was carried out through the agency of another contractor, that there was no loss to the Government as a result of the fresh tender and that the only amounts to be recovered from the appellant are of storage and unaccounted materials. As we have come to the conclusion that the other two contracts. Exts P-36 and P-50, have not in any way been broken, it is unnecessary for us to evaluate the result of a breach or the applicability of AIR 1954 SC 236 (A) to cases where the contracts have been broken.

22. The only reason alleged for establishing that the contracts evidenced by Exts. P-36 and P-50 were not subsisting at the relevant time is that the Government should have effected payments within a reasonable time after the completion of the works involved, that they were as a result in default and the contracts should be treated as having been broken by them. It is impossible to accept this contention.

23. It is open to the parties in cases of this type to ignore the breach, if any, and seek a settlement of the outstanding claims as if the contracts had not been broken. And that is exactly what the appellant seems to have done when he wrote Ext. P-44 to the Superintending Engineer, Always, on 24-12-1956:

'I request you to kindly settle my accounts pending for the last so many years' and

'I have already informed you the importance of settling my accounts immediately. You know the probable date for Elections have been announced. I have only few days more for the Election. If my accounts are not settled before the official announcement of the General Election I may not be able to contest this time. This will affect my future very seriously. So I request you to kindly interfere in this matter and settle my accounts as early as possible.'

24. It has also to be remembered that what is 'reasonable time' is essentially a question of fact. There has been no investigation whatsoever in this case as to what should be considered as 'reasonable time' for payment in the circumstances of the two contracts concerned.

25. In the light of what is stated above there is no reason for holding that the Tribunal was wrong in declaring the election of the appellant to be void under Section 100(1)(a) of the Representation of the People Act, 1951, and this appeal should fail. Judgment accordingly.

26. The appellant will pay the costs of the respondent, advocate's fee Rs. 300/-.

Raman Nayar, J.

27. I wish to add this to the Judgment of the Court just pronounced by my learned brother. I have doubt that the proper way to read Section 7 of the Representation of the People Act, 1951, after eliminating those portions which are not relevant to the present case is as follows:--

'A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State

(d) if ......he has any share or interest in a contract,....... .for the execution of any works. ....... .undertaken by the appropriate Government'.

The word 'undertaken' relates to works and not to contracts, and so long as the works are works undertaken by the appropriate Government it does not seem to matter with whom the contract is. Therefore the question whether a contract with the former Cochin Government is a contract with the appropriate Government is hardly germane; what falls to be decided is whether a work undertaken by the Cochin Government, as the works in this case were, can be said to be a work undertaken by the appropriate Government. If it can be, then there can be no doubt that the appellant is hit by the disqualification, for, the decision in AIR 1954 SC 236 (A), makes it abundantly clear that at least two if not all three of his contracts are still subsisting. Therefore, at the crucial time, the appellant had live contracts for the execution of works originally undertaken by the Cochin Government, and the only question is whether those works can be said to be works undertaken by the appropriate government within the meaning of Section 7(d) of the Act. Now if we turn to Section 9(1)(a), we find that 'appropriate Government' means, in relation to any disqualification for being chosen as a member of the Legislative Assembly of a State, the State Government. The election in this case, was to the Legislative Assembly of the Kerala State, and the question then is, what does the term 'State Government' connote when used in relation to the State of Kerala. No doubt with regard to things done after the formation of the State of Kerala on 1-11-1956, it connotes what is commonly known as the Government of Kerala, but with regard to things done (works undertaken) before the Constitution I think it means the then executive government of the concerned component part of the State. This, as we have held, is the effect of Section 3(60) of the General Clauses Act and I think that the interpretation we have placed on the several statutory provisions is the true interpretation. Or else the result would be that, while for example a person who has a contract for the execution of a work undertaken by the Government of Madras in the District of Malabar before 1-11-1956 (a contract which by reason of Section 87 of the States Reorganisation Act would now be a contract of the State of Kerala) would be disqualified from being chosen as a member of the Legislative Assembly of the State of Madras he would not be disqualified for being chosen as a member of the Legislative Assembly of the State of Kerala, a Result, which is manifestly wrong.


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