# ABDUL RAHIMAN KHAN v. SADASIVA TRIPATHI

- **Citation:** [1969] 1 S.C.R. 351
- **Court:** Supreme Court of India
- **Decided:** 1968-07-15
- **Case number:** Election Petition No. 1 of 1967
- **Bench:** J. C. Shah, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abdul-rahiman-khan-v-sadasiva-tripathi-4410
- **Pages:** 8

## Headnote

Representation of the People Act (43 of 1951), s. 9A-Contract with
Government-Not entered with Governor-If disqualifies.
Constitution of India, Art, 229-Contract not entered with GovernorWhether disqualifies under s. 9A Representation of the People Act.
The appellant's tenders to carry out certain contracts with the State of
Orissa were accepted but final contracts were not executed on behalf of
the Governor. The appellant carried on a part of the work and thereafter requested the authorities to cancel the contract without any penalty.
No acceptance of this offer waSa communicated to the appellant.
The
appellant wrote letters to the Superintending Engineer for extension of
time and for permission to resume the work and finish it. Shortly thereafter the appellant filed his nomination paper for a seat to the State
Legislative Assembly, which was rejected. The appellant filed an election
petition for setting, aside the election of the respondent on the ground
ihat the appellants nomination
paper
was improperly
rejected.
fhe
High Court rejected the petition.
HELD : The appellant was rightly disqualified.
(i) The contract was not wholly performed by' the appellant.
Unless
he proved that he had completed the contract or showed that there was
determination by mutual assent of the: contract, the appellant could not
claim .that there was no subsisting contract at the date of the filing of the
nomination paper.
The
conduct of the
appellant in writing the two
letters suggested that he did not treat the contract as cancelled, nor there
was any clear evidence to show that the authorities had treated the contract as cancelled, [356 C-E]
(ii) The contract resulting from the acceptance of his tender though
not enforceable by suit against tho State Government, because it did not
comply with Art. 299 of the Constitution must still be regarded as disqualifying the appellant under the Representation of People
Act from
standing as a candidate for election to the State Legislature. [357 HJ
Chatturbhuj Vithaldas Jasani
v.
Moreshwar
Parashram
&
Ors.,
[1954] S.C.R. 817 and Laliteshwar Prasad Sahi v. Bateshwar Prasad &
Ors., [1966] 2 S.C.R. 63, fOllowed.

## Text

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ABDUL RAHIMAN KHAN
v.
SADASIVA TRIPATHI
July 15, 1968
(J. C. SHAH AND V. BHARGAVA, JJ.)
Representation of the People Act (43 of 1951), s. 9A-Contract with
Government-Not entered with Governor-If disqualifies.
Constitution of India, Art, 229-Contract not entered with GovernorWhether disqualifies under s. 9A Representation of the People Act.
The appellant's tenders to carry out certain contracts with the State of
Orissa were accepted but final contracts were not executed on behalf of
the Governor. The appellant carried on a part of the work and thereafter requested the authorities to cancel the contract without any penalty.
No acceptance of this offer waSa communicated to the appellant.
The
appellant wrote letters to the Superintending Engineer for extension of
time and for permission to resume the work and finish it. Shortly thereafter the appellant filed his nomination paper for a seat to the State
Legislative Assembly, which was rejected. The appellant filed an election
petition for setting, aside the election of the respondent on the ground
ihat the appellants nomination
paper
was improperly
rejected.
fhe
High Court rejected the petition.
HELD : The appellant was rightly disqualified.
(i) The contract was not wholly performed by' the appellant.
Unless
he proved that he had completed the contract or showed that there was
determination by mutual assent of the: contract, the appellant could not
claim .that there was no subsisting contract at the date of the filing of the
nomination paper.
The
conduct of the
appellant in writing the two
letters suggested that he did not treat the contract as cancelled, nor there
was any clear evidence to show that the authorities had treated the contract as cancelled, [356 C-E]
(ii) The contract resulting from the acceptance of his tender though
not enforceable by suit against tho State Government, because it did not
comply with Art. 299 of the Constitution must still be regarded as disqualifying the appellant under the Representation of People
Act from
standing as a candidate for election to the State Legislature. [357 HJ
Chatturbhuj Vithaldas Jasani
v.
Moreshwar
Parashram
&
Ors.,
[1954] S.C.R. 817 and Laliteshwar Prasad Sahi v. Bateshwar Prasad &
Ors., [1966] 2 S.C.R. 63, fOllowed.
CIVIL APPELLATE JURISDICTION : Civil Appeal No, 1723 of
1967.
Appeal under section 116-A of the Representation of the
People Act, 1951 of the judgment and order dated October 14,
H
1967 of the Orissa High Court in Election Petition No. 1 of
1967.
D. Goburdhun, for the appellant.
352
SCPREME COURT REPORTS
[ 1969] l S.C.R.
C. B. Agarwala, Uma Mehta, S. K. Bagga and S. Bagga, for
A
the respondent,
The Judgment of the Court was delivered by
Shalt, J. At the last general elections, the respondent was declared elected to the Legislative Assembly of Orissa from
the
Nowrangpur General Constituency.
The appellant filed an election petition before the High Court of Orissa for an order setting
aside the election of the respondent, on the ground that the appellant's nomination paper was improperly rejected and he was illegally deprived of his right to contest the election. The High Court
rejected the petition.
The appellant has appealed to this Court
under s. 116-A of the Representation of the People Act, 1951.
It is common ground that the appellant was carrying on the
business of a building contractor and that in pursuance of a notification issued by the Government of Orissa he had submitted
tenders for construction of buildings
of the Rental
Housing
Scheme at the rates specified therein. Those tenders were accepted and the appellant had carried out a part of the construction
work, but had thereafter stopped the work becau~e he suffered
serious injuries which necessitated his detention in a public hospital.
The appellant claimed that at his request the contract was
cancelled, and on that account at the date of the filing of his
nomination there was, between him and the State of Orissa no
subsisting contract for execution of works undertaken by him,
and that in any event there was in law no contract between him
and the State relating to the execution of works which disqualified him from standing at the election as a candidate for a scat
in the State Legislative Assembly.
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In January 1965 tenders were invited by the Government of
Orissa for construction of buildings under the Rental Housing
F
Scheme.
The tenders submitted by the appellant were accepted
and on "'1arch 30, 1965, the appellant and the Executive Engineer signed an agreement in Form K-2.
The principal recitals
in the agreements were :
"I do hereby tender to execute the undermentioned
description of work by piece work, and in accordance
G
wit11 the conditions noted before in
consideration of
payment being made for the quantity of work executed
at rate specified in the following schedule."
A schedule of items was appended thereto which was followed hy the recital :
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"Conditions as per F-2 contract
which
will
be
finalised."
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ABDUL RAHIMAN v. SADASIVA (Shah, J.)
3 5 3
The Executive Engineer then made an endorsement on the
tenders. "Accepted by me for item 5 only," and submitted them
to the Superintending Engineer for approval of "excess items".
Apparently sanction was given by the Superintending Engineer
but no formal contracts in Form F-2 were executed.
Advance
payments were however made to the appellant after execution .of
the agreements in Form K-2 and the appellant proceeded with
the work of construction.
On October 13, 1965 the appellant
suffered serious · injuries which necessitated his admission to a
public Hospital and the construction work
wa~ stopped. On
January 6, 1966. the Sub-Divisional Officer, P.W.D. Nowrangpur, addressed a letter to the appellant calling upon him to resume
work on or about the January 12, 1960, failing which, he was
informed, his contract will be terminated and "measurements will
be recorded".
On February 10, 1966. the appellant addressed
a letter to the Executive Engineer, P.W.D. stating that it was not
possible for him to resume the work and to complete it. and
he requested that the contract be cancelled without imposition of
penalty. On the letter of the appellant there are two endorsements
at the foot of the letter which have been marked Ext. 2(a) and
Ext. 2(b) : Exhibit 2(a) reads:
"Submitted to the Executive Engineer,
Koraput
Division.
The reason for terminating the contract, as
mentioned by Shri A. R. Khan, contractor, is correct.
His contract may be terminated
without
imposing
penalty and permission given to take up work through
job work soon."
Exhibit 2(b) dated March 18, 1966 bears the initials of the
Executive Engineer, and states :
'
"I know of the unfortunate accident. As the applicant is still in the Vizag Hospital his work may be
finally measured and closed without penalty.
The
balance of the work may. be completed through
job
work."
The Sub-Divisional Officer, Nowrangpur. wrote a letter on
March 16, 1955, requesting one Harihar Bisoi nursuant to his
annFcation dated March 5, 1966, to fake up the Rental Housing
Schedule building work at Nowrangpur "immediatelv at current
schedule of rates after taking detailed instructions from the Sectional Officer, Nowrangpur." It appears that Harihar Bisoi did
some construction work, but no payment was made to him and
he also stopped the work.
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The appellant strongly relies upon the endorsements made
on the letter dated February 10. 1966. the letter Ext. 3, and the
evidence of Ram Mohan Patnaik-the Executive Engineer. Ram
Mohan Patnaik stated that .he by his endorsement Ext. 2(b) on
354
SUPREME COL'RT REPORTS
[1969] l S.C.R.
lhe application dated February I 0, 1966, had clearly directed
that the work of the contractor (appellant)
would be finally
measured and his contract would be treated as closed and no
penalty would be charged from him; that the question of accounting had nothing to do with the closing of the contract; and that
on March 18, 1966, he had passed an order Ext. 2(b) that the
contract was closed.
According to the witness closure of the
contract was no1 conlingent upon the mcasuremrnt of the work
done by the appellant, and that by his order dated March 18,
1966 Ext. 2(b) the appellant was excused from liability to complete the work, as tbc contract was rescinded and by implication
Ext. 2(b) meant that the Sub-Divisional Officer would give intimation to the contractor about the cancellation of his
contract.
The witness could not say whether lhe Sub-Divisional Officer did
give intima1ion to the contraclor.
He asserled that it was not
his intention that job work should be entrusted to job workers
only afcr the final bill of the appellant was submitted : his clear
intention was that after measurement was taken, the work may
be entrusted to job workers.
According to the witness by Ext.
2(b) he accepted the incomplete work of the
appellant "as a
complete satisfaction of his contract."
This evidence prima facie supports the case of the appellant
that it was the intention of the Executive Engineer to terminate
the contract. But there is a mass of evidence on the record which
shows that no steps were taken to intimate to the appellant about
the detennination of the contracls and both the parties treated the
contract as subsisting.
To that evidence we may advert.
On
April 15, 1966, the appellant wrote a Jetter in reply to a letter
dated April 13, 1966 from the Sub-Di\isional Officer that he "had
completed upto slab level the construction of Rental Housing
Scheme" and that thereafter he was lying injured in a hospital
and that as he had no au1horised agents to look afler further
work, early action may be taken to make final measurement upto
slab level and for payment of the amount due to him.
On December 20, 1966, the appelJant wrote a Jetter to the Superintending Engineer stating that he had recovered and was in a position
to leave the Hospital and to attend to his normal avocation and
that he bad learnt that the Department wanted to cancel his contract and call for new tenders and had taken some action towards that end.
He requested the Superintending E112ineer to
desist from such a course and to favourably consider his request
for extension of time to complete the work.
He stated that he
had advanced large sums of money to the labourers and for the
supply of materials, and there were large quantities of building
materials belonging to him which had been lying at the site of
the work and if his contracts "were 10 be cancelled he would
sustain irreparable loss"; that he had always been a very efficient
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ABDUL RAHIMAN v. SADASIVA (Shah, J.)
355
and good contractor and was executing the works in time and
diligently and well; and that he could not complete the work due
to the unfortunate accident.
He then stated :
"I, therefore, request you to kindly grant me time
upto end of March 1967 and I shall resume the work
by about 15th January 1967 and will finish it by 31st
March, 1967.
The cancellation of my contract at this stage when
nearly 75% of the work was already done by me and
the roofing alone remains to be completed and the stoppage of the work was due to circumstances over which
I had no control due to more or less vismajor will be
most inequitable if not unjust.
I, therefore, earnestly
appeal to you to sympathetically consider this representation of mine and grant me time till end of March 1967
and order withdrawal or cancellation of the fresh tenders
that might have been called for by the Executive Engineer Koraput."
At the foot of the letter there is a notation that tenders had been
called for the balance of the work "as per instructions of the
Executive Engineer, Koraput, and that the contract may be res·
cinded as instructed by the Executive Engineer, Koraput." There
is another notation : "It is an old case wherein Executive Engineer has already ordered to close the contract and do by job
(illegible) order its without penalty (illegible)".
There is one
more notation dated January 4, 1967-"Submitted for favour of
orders. What penalty is to be imposed in rescinding the contract."
Exhibit 13 is a letter dated January 22, 1967, from the Assistant Engineer, P.W.D. Nowrangpur to the
Returning
Officer
which sets out the circumstances in which the work entrusted to
the appellant was stopped.
The letter states that "the balance
work which was suggested to take up on job-work basis would
not affect the accounts of Sri A. R. Khan for his work portion.
The final bills for hls above two works of the aforesaid contractor
have been submitted to Division Office vide this office
letter
Nos.
120 and 121 dated 18-1-67 and I have been mtimated
vide Divisional letter No .. 902 dated 20-1-67 that the said contractor has to return 435 bags of cement and 7.954 quintals of
rods to the undersigned to finalise his accounts. But no material
has been returned by the contractor yet and as such it ensures that
his accounts have not yet been finalised." Exhibit 14 is a letter
dated January 22, 1967 addressed to the appellant which also
indicates that the P.W.D. authorities had not treated the contract
as cancelled and had not intimated to him the order made by the
Executive Engineer,
·
356
SUPRH!E COURT REPORTS
[ 1969] 1 s.c.R.
In February 1966 the appellant requested cancella
0
tion of the
contract.
The Executive Engineer was willing to
accept
the
offer. of cancellation and made an endorsement !n that behalf, but
nothing was done thereafter.
Harihar Bisoi
was
apparently
asked to take up the work "at the current schedule of rates", but
even thereafter the contract with the appellant was not treated as
cancelled.
It is true that by virtue of the Explanation to s. 9A of the
Representation of the People Act, where a contract has been
fully performed by the person by whom it has been entered into
with the appropriate Government, the contract >hall be deemed
not to subsist by reason only of the fact, that the Govcrrunent
has not performed its part of the contract either wholly or in
part. In the present case the contract was not wholly performed
by the appellant, and unless he had completed the contract or
showed that there was determination by mutual a~sent of the contract, the appellant cannot claim that there was no subsisting contract at the date of the filing of the nomination paper. By letter
written by the appellant on July 22, 1966, Ext. C, the appellant
made a request for extension of time by six months to enable him
to complete tile work and by his letter Ext. D dated December
20, 1966 he requested tile Superintending Engineer not to cancel
the contract or call for new tenders. This conduct of tile appellant clearly suggests that he did not treat the contract as cancelled,
nor is there any clear evidence to show "that the authori!ies had
treated the contract as cancelled. The High Court was, therefore,
right in holding that the case did not fall within the explanation
to s. 9A of the Representation of the People Act and there was
no evidence of determination of the contract by mutual agreement.
Counsel for the appellant contended that the contract
for
execution of works was between the State and the appellant and
Art. 299 of the Constitution applied thereto, and since the contract was not shown to be executed in the name of the Governor,
and by an. authority competent to execute the contract on behalf of the Governor, the disqualification under s. 9A did not
apply.
By cl. (I) of Art. 299 all contracts made in the exercise of the execute power of the State must be expressed to be
made by the Governor of the State, and all such contracts made
in the exercise of that power must be executed on behalf of the
Governor bv such persons and in such manner as he mav direct
or authorise.
It is true tllat agreements were executed ·by the
Executive Engineer in Form K-2 but no final contracts were executed in Forni F-2. The appellant proceeded on the footing that
there was a binding contract under which he had undertaken the
work of construction for the State, and tile State had allowed
him to work and had offered to pay him for the work done at tile
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ABDUL RAHIMAN V. SADAS!VA (Shah, J.)
357
rates set out in Form K-2. The appellant could not by virtue
of Art. 299 sue in a civil court on the agreement in Form K-2
for compensation for breach of contract.
But we are unable
to hold that the appellant was not disqualified under s. 9A of
the Representation of the People Act merely because the contracts were not enforceable against the State because of Art. 299
( 1) of the Constitution.
In Chatturbhuj Vithaldas Jasani v.
Moreshwar Parashram and others('), Bose J., in dealing with
a case of disqualification under the Representation of the People
Act 1951, resulting from a contract with the State which is
not executed in the form and manner prescribed by Art. 299,
observed :
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"It may be that Government will not be bound by
the contract in that case, but that is a very different
thing from saying that the contracts as such are void
and of no effect. It only means that the principal cannot be sued; but we take it there would be nothing to
prevent ratification, especially if that was for the benefit of Government, . . . We accordingly hold that the
contracts in question here are not void simply because
the Union Government could not have been sued on
them by reason of Article 299 (1) ."
Undoubtedly f9r breach of the terms of a contract not executed
in the manner- prescribed by Art. 299 ( 1) a suit for relief in a
civil court will not lie, but on that account it cannot be said that
a contract for execution of works undertaken by a person though
not executed in manner prescribed by Art. 299, but which is
treated by both the parties thereto as binding will not operate as
a disqualification. In a recent judgment of this Court in Laliteshwar Prasad Sahi v. Bateshwar Prasad and others(2 ), this Court
held that where an agreement for execution of work h¢ been
entered into between the State Government and a private person
by correspondence and the State Government has ratified the
agreement and has treated the relation between the parties as
contractual and has accepted liability arising under the terms of
the agreement as if it were a pendin!! contract, a disqualification
under the relevant provisions of the Representation of the People
Act results.
As already pointed out, the appellant had commenced execution of the work but had not completed it. Payment for the
work done was not made to the appellant. The contract was not
determined by mutual agreement nor was it abandoned.
The contract resulting from the acceptance of his tender
though not enforceable by suit against the State Government, be-
{!) [1954) S,C.R. 817.
(2) [1966] 2 S,C.R.63
358
SUPREME COURT REPORTS
(1969] i S.C.R.
cause it did not comply with Art. 299, must still be regarded as
A
disqualifying the appellant under
the
Representation
of the
People Act from standing as a candidate for election to the State
Legislature.
The appeal therefore fails and is dismissed with costs.
B
Y.P.
Appeal dismissed.
..