- (1.) 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. 2 of 2006 by which the prayer of the appellant to declare the election of the Returned Candidate, viz., the respondent, from 220 - Cheranmahadevi Assembly Constituency of the Tamil Nadu Legislative Assembly as null and void, is refused.
(2.) The relevant facts emerging from the record of the case are as under: - The Election Commission notified election schedule for the Thirteenth Tamil Nadu Legislative Assembly on March 3, 2006. Pursuant to the said notification, the Returning Officer, Cheranmahadevi called for nominations for Cheranmahadevi Assembly Constituency. The last date for filing the nomination papers was April 20, 2006. The date of scrutiny of the nomination papers was April 21, 2006 and the election was to be held on May 8, 2006. The appellant filed his nomination papers on April 17, 2006. So also the respondent filed his nomination papers on April 17, 2006. The nomination papers, filed by both, i.e., the appellant and the respondent were accepted by the Returning Officer. During the scrutiny of the nomination papers on April 21, 2006, the appellant raised an objection that since the respondent had subsisting contracts with the Government, his nomination papers should not be accepted. The respondent filed his counter stating that the contracts entered into by him with the Government were terminated before filing of the nomination papers and, therefore, his nomination papers were not liable to be rejected. The Returning Officer passed an order dated June 26, 2006 over-ruling the objections filed by the appellant. The election for the Tamil Nadu Legislative Assembly took place on the scheduled date, i.e., on May 8, 2006. The results were declared on May 11, 2006 and the respondent was declared elected. Therefore, feeling aggrieved, the appellant filed Election Petition No. 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 nomination papers and consequently from contesting the election as he had subsisting contracts with the Government. The appellant made reference to G.O.Ms. No. 4682 of Public Works Department dated November 16, 1951 and stated that in the light of the contents of the said G.O. a contractor would be entitled to terminate a subsisting contract only if other contractor acceptable to the Chief Engineer was available and that another contractor was willing to enter into a contract to execute the works under the existing terms and conditions so that no loss was suffered by the Government. The case of the appellant was that as per the said G.O. dated November 16, 1951, termination of a subsisting contract would take place only after settlement of the rights and liabilities between the Government and the existing contractor, but in the present case no such settlement had taken place between the respondent and the Government and, therefore, the election of the respondent was liable to be set aside. What was maintained in the Election Petition was that the respondent had not terminated his subsisting contracts in terms of G.O. dated November 16, 1951 and mere removal of the name of the respondent from the list of approved contractors should not be construed as termination of the contracts as long as the contracts were not 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.
(3.) On service of notice, the respondent contested the Election Petition by filing reply affidavit. In the reply it was stated that the respondent was not having any subsisting contract with the Government on the date of filing of his nomination papers as well as on the date of the scrutiny of the nomination papers. According to the respondent it was not necessary to follow the procedure contemplated under the G.O. dated November 16, 1951 before termination of contracts for contesting the election. What was maintained by the respondent was that even if it was assumed that the conditions enumerated in the G.O. were not followed, that would not nullify the termination of the contracts if made. According to the respondent the Divisional Engineer (Highways) NABARD and Rural Roads, Nagercoil had terminated the contract on April 17, 2006 and had freezed as well as forfeited the deposits of the amount made by him for crediting the same into Government account. Thus, according to the respondent, it was not correct to say that any contract was subsisting as far as the works relating to Tirunelveli Division was concerned. 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 non-observance of the said G.O. would not nullify the order terminating the contract issued by the Divisional Engineer on April 17, 2006. The respondent maintained that he was no longer a registered contractor with the Tamil Nadu State Highways Department nor was he having any subsisting contract in respect of the works referred to in the Election Petition and, therefore, his election was not liable to be set aside. It was further stated in the reply that balance work not executed by him was completed by the substitute contractor S. Rajagopalan on the same terms and conditions, which were agreed upon by him with the Government to execute the works concerned and thus no loss was suffered by the Government. The averment made in the Election Petition that the respondent had not made any alternative arrangement for another contractor was emphatically denied by him. By filing reply, the respondent had demanded the dismissal of the Election Petition.;