Holding

The Court held that the alleged termination documents were not duly tendered before the election, the contract subsisted at the time of election, and therefore the respondent was disqualified under Section 9A, rendering his election void under Section 100.

Summary

The appellant challenged the election of Subash Kallur, alleging that he was disqualified under Section 9A of the Representation of People Act, 1951 because a contract with the Karnataka Irrigation Department subsisted on the date of election (5 September 1999). Kallur contended that he had terminated the contract before the election by submitting a letter dated 11 August 1999 and an affidavit dated 13 August 1999 requesting a No Dues Certificate. The Karnataka High Court accepted those documents as genuine, held that the contract was terminated, and dismissed the election petition. On appeal, the Supreme Court examined the documentary and oral evidence and found that the letter and affidavit were not formally received or acknowledged on the dates claimed, indicating they were interpolated and anti‑dated, and that the contract was only legally rescinded on 5 September 2000. Consequently, the contract subsisted for 10% of the work at the time of election, rendering Kallur disqualified under Section 9A and his election void under Section 100. The appeal was allowed and the High Court order set aside.

Issues considered

Whether the letter dated 11 August 1999 and the affidavit dated 13 August 1999 were genuinely tendered and received before the election date.
Whether the contract between the respondent and the State was terminated before the election, thereby disqualifying the respondent under Section 9A of the Representation of People Act, 1951.
Whether the burden of proving termination of the contract lies on the respondent.
Whether the election of the respondent is void under Section 100 of the Representation of People Act, 1951.

Legislation cited

Representation of People Act, 1951s. 100, s. 67A, s. 9A

Subjects

Representation of People Actdisqualificationgovernment contractelection petitionauthenticity of documentscontract terminationSection 9ASection 100Karnataka Legislative Assemblyelection void

Judgment

RAJESHEKAR BASA VARAJ PATIL A
v.
SUBASH KALLUR AND ORS.

OCTOBER 8, 2002

[M.B. SHAH AND D.M. DHARMADHIKARI, JJ.) B

Representation of People Act, 1951-Sections 9A and JOO(J}(a)-Election
to Assembly challenged on the ground of subsisting contract with Government
on the date of election-Plea of returned candidate that prior to election C
unilateral termination of contract sought by submitting letter and affidavit-
Petition dismissed by High Court-On appeal held, in the facts of the case
letter and the affidavit proved to be interpolated and anti-dated-Contract
legally and formally terminated only ajier date of election-Hence, returned
candidate was disqualified to contest the election.
D
Appellant challenged the respondent's election to Legislative
Assembly on the ground that he was disqualified to contest the election
as there subsisted a contract between him and the State. Respondent-
returned candidate claimed that he was not disqualified since before the
date of election, on 11.8.1999 he had given notice of unilateral termination
of the contract and further on 13.8.1999 he filed an affidavit whereby he E
made it clear that he had earlier made an application to terminate the
subsisting contract between him and the State. Appellant alleged that the
said documents were interpolated and anti-dated and were introduced on
the record after the date of election i.e. 5.9.1999. In order to prove the
falsity of the claim of returned candidate, appellant summoned PW2- F
Executive Engineer in evidence, who deposed that he received a letter
dated 11.8.1999, that on the original letter he had put the date of receipt
as 14.9.1999 and the entry of its receipt was recorded in the Inward
Register on 15.9.1999. PW4 deposed that formal permission for rescinding
the contract was granted only on 5.9.2000. Returned candidate, in order
to prove the genuineness of the letter and the affidavit, examined RW2, '-'
who stated that he received the letter and acknowledged its receipt. The
'"
affidavit was not put to him to prove that he had acknowledged its receipt.
Jn cross-exa.mination he admitted that normally letters are acknowledged
by Manager in the office and it was not his normal duty to receive or
141 H
142 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A acknowledge any letter or application. Returned candidate, in cross-
examination, stated tl!at he did not know as to who acknowledged the
affidavit. High court accepted the letter and the affidavit as genuine
documents as having been submitted on the dates mentioned on them, and
held that there was unilateral and/or bilateral termination of contract
between returned candidate and Government and dismissed the election
B petition.

In appeal to this Court, respondent contended that the letter was
tendered with a desire to end the contract; that original records of Notary
and initials put for acknowledgement of the affidavit go to show that it
C was a genuine document preferred on the date shown; that genuineness
of the letter is proved from the facts that in the affidavit it has been
mentioned that he had already made earlier application to terminate the
subsisting contract and in subsequent correspondence also there is mention
of submission of letter dated 11.8.1999; and that since PW2 supported the
case of returned candidate and still he was not cross-examined by the
D appellant, the case of the appellant is liable to be rejected.

Allowing the appeal, the Court

HELD: I. Returned candidate suffered a disqualification under
section 9A of Representation of People Act, 1951 for contesting the election
E as the contract between him and the State subsisted for IO per cent of
remaining work. His election is, therefore, liable to be set aside on the
ground made out under Section 100 of tile Act. (160-F, G J

2.1. Appellant has satisfactorily proved his case that both the
documents i.e. letter dated 11.8.1999 and affidavit dated 13.8.1999, were
F neither formally tendered nor officially received in the office of the
Executive Engineer on the dates respectively shown on them. The
respondent has miserably failed to dispel the doubt created on the fact
and date .of submission of the letter and the affidavit. (156-D, El

G ,2.2. It cannot be said that in absence of cross-examination of PW2-
Executive Engineer, the case of the appellant that the letter dated 11.8.1999
was an interpolated document should be rejected. The appellant had
summoned the Executive Engineer with the original documents alleged to
have been presented before him. From his statement in examination-in-
chief and cross-examination, the appellant has amply demonstrated that
H deviating from the normal laid down official procedure, the Accounts
R.B. PATIL v. SUBASH KALLUR 143
Superintendent acknowledged receipt of the letter instead of the Executive A
Engineer to.whom it was personally presented or the manager of the office.
It was actually received by the Executive Engineer only on 14.9.1999 when
he had put his initials on the same. The letter finds mention of its receipt
in the entry of the Inward Register made on 15.9.1999. The appellant
having proved the above circumstances from the documents produced B
through Executive Engineer, the burden shifted to the respondent to prove
that before the due date of election he had submitted on 11.8.1999 an
application expressing his desire to terminate the contract unilaterally.
This burden of proof squarely lay on the respondent which he cou Id have
discharged by rebuttal evidence. [153-F-H; 154-A, Bl

2.3. Respondent No.I and RW2, both have not been able to explain
c
why in accordance with the normal official procedure the receipt of the
letter dated 1l.8.1999 was not formally acknowledged in writing by either
the Executive Engineer or the Manager of the office. They also could not
explain why entry in the inward Register was not made on same or
subsequent day. Merely because in all subsequent correspondence there D
is mention of such a letter, the case of respondent cannot be accepted that
in fact on 11.8.1999 the letter was submitted. The subsequent
correspondence admittedly had taken place after the election. The
documentary and oral evidence on record cast a serious doubt on the
authenticity of the letter dated ll.8.1999. It cannot be believed that it was E
handed over to the Executive Engineer personally on 1 l.8.1999.
[154-C-Ei

2.4. The claim of the respondent that the affidavit was presented in
the office of the Executive Engineer on 13.8.1999, cannot be accepted.
Though, there is nothing to doubt the records of the Notary but it appears F
unbelievable that both, the letter dated 1 l.8.1999 and affidavit dated
13.8.1999, although submitted in the office of the Executive Engineer
instead of having been acknowledged by the concerned Executive Engineer
or the Manager of the office, would have been, contrary to the normal
official procedure, acknowledged by the Accounts Superintendent. The
statement in cross-examination of the respondent makes it clear that the G
respondent himself was not personally aware as to who had pnt initials in
the office of the Executive Engineer on the affidavit and acknowledged
its receipt. It seems highly improbable that at the time of presentation of
letter dated l l.8.1999 and affidavit dated 13.8.1999, the respondent, who
was keen to contest the election, would not have insisted on obtaining a H
I'

144 SUPREME COURT REPORTS (2002] SUPP. 3 S C.R.

A separate formal acknowledgement of the presentation and receipt of the
letter and affidavit from the Executive Engineer to whom the documents
are alleged to have been personally handed over. It is most unlikely that
on such vital matter concerning his qualification to contest the election
the respondent would have felt contended by merely obtaining initials on
B his personal copies of the letter and affidavit which he alleges to have
retained with him for election purposes. [155-H; 156-Af

2.5. The burden of proof that the affidavit was filed by the
respondent in the office of the Executive engineer on 13.8.I 999 i.e. before
the scheduled date of election, was squarely on the respondent, more so,
C when the appellant has led evidence to prove that affidavit dated 13.8.1999
w.as never formally received by the department in the office of the
Executive Engineer on 13.8.1999. [156-C, DJ

3.1. Assuming, that the letter and the affidavit were in fact submitted
on the dates mentioned respectively in them, it is not possible to come to
D the conclusion that respondent as contractor had on his part terminated
the contract by withdrawing from the contract and thus committing a
breach. The contents of the letter on a plain reading does not convey an
intention on the part of the respondent to unilaterally terminate the
contract, regardless of the fact whether it had been completed partially
or fully. The reference in the affidavit, therefore, is undoubtedly to the
E letter dated I 1.8.1999. The contents of the letter, merely show a desire to
obtain 'No Dues Certificate' on a claim that contract had been fully
performed. In the affidavit, a part of the statement made is contrary to
the contents of the letter. In the letter, it is stated that the contract has
been "completed" whereas in the affidavit, it is stated that it "has been
F executed partially". The letter and affidavit were clearly with a view to
request the departmental authorities to take action on their part to
formally terminate the contract with cost and expenses to be borne by the
contractor. None of the two documents, from the language·employed
therein, seem to convey an unequivocal intention on the part of the
con.trador. to terminate the contract by treating the same as the breach
G of it on his part. [157-A; 159-F, G; 157-E-Gl
3.2. There is ample documentary and oral evidence to show that the
contract came to' be terminated legally and formally only after~ proposal
was moved by the Executive Engineer in that direction. The Chief Engineer
H granted formal permission for rescinding the contract only on 5.9.2000.
R.B. PATIL v. SUBASH K.ALLUR [DHARMADHIKARI, J.] 145

These facts have been confirmed in the deposition of the Chief Engineer A
of the project on the basis of records shown to him when he was examined
as PW4. 1159-G; 160-BI

Prakash Khandre v. V.K. Khandre, JT (2002) Supp. I SC 317,
distinguished.
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5667 of
2001.

From the Judgment and Order dated I0.4.200I of the Karnataka
High Court in E.P. No. 13of1999.

V.A. Mohta, B.K. Choudhary, Santosh Kumar, Amar L.V. and E.C.
c
Vidya Sagar for the Appellant.

P.P. Rao, S.N. Bhat, D.P. Chaturvedi and K.M. Prakash for the
Respondent.

The Judgment of the Court was delivered by
D

DHARMADHIKARI, J. This is an appeal under Section II6A of the
Representation of People Act 195 I (for short 'the Act') against the order
dated I 0th April 200 I passed by the High Court of Karnataka at Bangalore
dismissing Election Petition No. I 3/99 filed by the present appellant E
challenging election of the Returned Candidate (Respondent No. I herein) to
the Humnabad seat of Kamataka Legislative Assembly Constituency No.5.
The Returned Candidate-Respondent No. I got, 35,438 votes as against the
present appellant who got 31,868 votes.

The election of the Returned Candidate has been assailed on the sole F
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 IOO(l)(a) read with Section 9A and Section 67A of the Act. The
aforesaid three Sections of the Act are reproduced hereunder for ready G
re fer en ce :-

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

(a) rhat on the date of his election a returned candidate was not H
146 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A 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)

(c)
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
c 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
beenfally performed by the person by whom it has been entered into
with the appropriate Government, the contract shall be deemed not
D 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
E House of Parliament or of the Legislature of a State shall be the date
of election of that candidate."

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
F 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
G 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. I
executed the works under the contract upto 11.8.1999 and was paid for it.
Respondent No. I claims to have submitted on 11.8.1999 an application to the
Executive Engineer requesting that he be granted "No dues Certificate" as he
H intended to contest the Assembly Elections.
R.B. PATIL v. SUBASH KALLUR [DHARMADHIKARI, J.) 147

The appellant's Election Petition before High Court was based on the A
letter dated 5.11.1999 (Ex.P.6) of the Executive Engineer, !PC Division No.3,
Sulepeth, which he had received in reply to his query on the existence or
-Otherwise of a contract between respondent No. I and the State of Kamataka.
The contents of the said reply dated 5.11.1999 received by the appellant from
the Executive Engineer need reproduction in full:-
B
Ex.P.6
Dated 5.I I.I 999
To,
Shri Rajshekhar Patil,
Near K.S.R.T.C. Bus Stand,
Humnabad, Dist. BIDAAR. c
ENDORSEMENT

Sub: Existing & subsisting contract between Govt. of Kamataka
& Subhas Kallur, Class-I contractor, Humnabad.
D
Ref: Construction of Right Bank Canal from Km 45 to 46 of
Lower Mulamary Project of Irrigation Department.

Sir,

On going through the records it has been noticed Shri Subhash E
Kallur, Class-I contractor, Humnabad, was entrusted the work for the
construction of Right Bank Canal including C.D. works from Km. 45
to 46 Lower Mulamary Project of Irrigation Dept.

After verification of measurement book and perusing the entire
records of work referred to above Shri Subhas Kallur, Class-l F
contractor, has not completed the entire work for the construction of
Right Bank Canal including C.D. works, from Km 45 to 46 of Lower
Mulamari project. The said Subhash Kallur, has executed the works
to the extent of 90% of Total work.

There exist a subsisting contract to the extent of 1_0% of work G
with Subhash Kallur.

Subhas Kallur, by letter dated 11.8. 1999 requested this office to
issue No dues certificate to contest the election on the ground he
completed the entire work of construction of right Bank Canal
including C.D. works from Km. 45 to 46 Lo1-ver Mullamary Project. H
148 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A However he has not completed the entire work referred to above
as claimed by him in his letter dated 11.8. 1999. As referred to above
there exist a contract to the extent of 10% of the work referred to...
This is for your information

Thanking you,
B
Yours faithfully,
Executive Engineer,
!PC. DIV., No.3 Sulepeth
[Underlining for inviting pointed attention}
c By the above reply, the appellant was clearly informed by the Executive
Engineer that "there existed a contract with the respondent to the extent of
I 0% of the remaining work.

The case set up by the respondent is that before the date of election, by
D letter dated I J.8.1999-Ex.PlS (of which the original letter is marked as Ex.RI),
the respondent had given a notice of unilateral tennination of the contract
and clearly expressed his unwillingness to undertake the remaining construction
work since he desired to contest the assembly election. The contents of letter
Ex.PIS dated 11.8.1999 are impo1tant because respondent has heavily relied
on it to support validity of his election and the election petition.er has doubted
E its authenticity as also its legal effect on the question of subsistence of the
contract. The letter Ex.Pl 8 dated 11.8.1999 reads thus:-
Ex.P.18
381205
Subhash Kallur, Class-I
F PWD Contractor.
Date 11.8.1999
To,

Executive Engineer,
Irrigation Department,
G 1.P.C. Division No.3
Sulepete.

Sub:- Regarding No dues Certificate (NOC)
Sir,
H
R.B. PATIL v. SUBASH KALL UR [DHARMADHIKAR!, .I.] 149

This is for your submission that since I am contesting the A
forthcoming Vidhana Sabha Elections, I require the no due certificate
from your office (NDC). As per the Contract with your Department
I have completed the work of construction of canal from Km 45 to 46
l.MC. (Lower level Mullamari project). There are no outstanding
dues from my side. Therefore, I request you to kindly issue a no due B
certificate to me at the earliest.

Yours faithfully,

Sd/-
Subhash Kallur C
First Class Contractor
Humnabad.

The further case of the respondent is that letter dated 11.8.1999 was
delivered to the Executive Engineer and on his instructions of Executive
Engineer he filed on 13.8.1999 an affidavit (Ex.P7) of which original is filed D
as Ex.P7A. It has been urged that by the affidavit filed on 13.8.1999, the
respondent had made it amply clear that as he inknded to contest the election,
the contract entered by him with the Government be terminated and the
balance work, if any, be taken up at his risk and cost. The contents of the
affidavit dated l 3 .8.1999 also need fu II reproduction :- E
AFFIDAVIT
Entered into Notarial Register
No.1400 Page No. 138
Date 13.8.1999
I, Subhas S/o Gurlingappa Kallur, Age: Major Occ; Contractor
F
Rio Humnabad Dist. Bidar do hereby solemnly affirm and state on
oath as follows:

I. I have been entrusted with the following work, construction of
Right bank Canal Alongwith C.D. Works in Km. No 45 to 46. G
2. That the aforesaid work has been executed partially by me and
the substantial portion of the work has been completed by me.
I am the class-I contractor for the last several years and executed
the works as per the time schedule.

3. I humbly state that, I have taken up the aforesaid work with an· H
150 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A intention to complete the same at the earliest, in view of the ·
preponment of the Assembly elections, I could not complete the
work to contest the elections.
4. I humbly state that, I intend to contest the ensuing election of
Karnataka legislative Assembly, I submitted the application to
B terminate the subsisting contract between the Government of
Karnataka and the said application is under consideration.
5. Balance work if, any, may be taken up at my risk and cost for
which, I am agreed.
No. of Correction (Two)
c Date: 13.8.1999
Place: Gulbarga
Identified by me.
Deponent... ...

D Subash Kallur, I Class
contractor
Humnabad Dist. ;J-
[Emphasis for pointed attention]
After hearing the learned Senior Counsel Shri BA Mohta, appearing for
E · the appellant and learned Senior Counsel Shri PP Rao, appearing for the
Returned Candidate, we find that the controversy in this appeal centres on the
authentically and legal effect of letter dated 11.8.1999 Ex. PIS and affidavit
dated 13.8.1999 Ex.P7.

The learned Senior Counsel appearing for the appellant urged that
F from documentary .and om! evidence led by the appellant it has been amply
demonstrated that the letter dated 11.8.1999 (Ex.P 18) and affidavit dated
13.8.1999 (Ex.P7) were surreptitiously" introduced in the record of the Irrigation
Department by the Returned Candidate only after the date of declaration of
result i.e. 5.9.1999.
G On the other hand, learned Senior Counsel appearing for the Returned
Candidate submits that the original letter followed by submission of the
affidavit and subsequent correspondence exchanged between the officials of
Irrigation Department and the respondent, all show that the letter dated
11.8.1999 and affidavit dated 13.8.1999 were genuine documents and were
H neither anti-dated nor interpolated.
R.B. PATIL v. SUBASH KALLUR [DHARMADHIKARL .I.] 151

We shall first take up for consideration the question whether letter Ex. A
PIS and affidavit Ex.P7 are geniune documents and were actually tendered
to the Department on the date mentioned in those documents. The High
Court accepted the letter and the affidavit as genuine documents and as
having been submitted on the dates mentioned in them. By relying on the
contents of the above mentioned letter and affidavit the High Court recorded B
its conclusion that before the date of election there was unilateral and/or
bilateral termination of contract between respondent and the Government.

In order to prove the alleged falsity of the claim of the Returned
Candidate that the he had handed over the letter dated 11.8.1999 Ex.Pl 8 and
the affidavit dated 13.8.1999, Ex.P7 to the Executive Engineer to seek C
termination of the Contract, the appellant summoned in evidence the then
Executive Engineer, namely, Guranna Muttagi as PW2. The Executive
Engineer, Who was !n charge of the works during the relevant period has
stated in his desposition that on 11.8 ..1999 he had received a letter from
respondent seeking issuance of 'No Dues Certificate' as the latter proposed
to contest the election. H~ admitted that on the original letter he had put the D
date as '14.9. 1999' and it contains an official seal showing the dates
'15. 9. 1999' on which e!ltry of its receipt was recorded in the Inward Register
at Sr. No. 1862. He testified the entry made on 15.9.1999 in the Inward
Register (Ex.Pl 9) pertaining to letter-dated I 1.8. I 999.
E
On the question of date of filing of the letter dated 11.8. 1999 Ex.P. I 8
the Executive Engineer in Cross-examination stated that it was submitted to
him personally on I I .8.1999 by the respondent but its receipt was
acknowledged by the Accounts Superintendent working under him in his
office.
F
Regarding the affidavit which is alleged to have been submitted on
13.8.1999, the Executive Engineer in his deposition made the following
statement:-

"Usually we make an entry in this register when a document is received G
in our office, by the next day itself. In this case, affidavit Ex.P7 A
remained in my file and it is not noticed that an entry relating to the
receipt of the said affidavit has not been made in Ex.19. On the very
next day, I handed over this affidavit taking it out from my file to the
inward clerk on 14.9.1999 when I was about to go on leave, for the
purpose of making an entry about the receipt of this affidavit in H
152 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A Ex.P\9".

The respondent in his deposition stated that after submission of letter
Ex.P 18, the Executive Engineer asked the respondent to file an affidavit
mentioning the work done by him. Thereupon, the respondent filed affidavit •
Ex. RIO on 13.8.1999. According to the respondent on the Xerox copy of the
B affidavit an endorsement of its receipt on original in the office of the Executive
Engineer was also made.

In his cross-examination he denied the suggestion that letter dated
11.8.1999 was not handed over to the Executive Engineer on the said date
C as there is no entry of the said letter in the Inward Register maintained in the
office.

To prove genuineness of the letter dated 11.8.1999 and affidavit dated
•
13.8.1999, the respondent examined the Accounts Superintendent viz. Sreekant
Deshmukh (RW2). The Accounts Superintendent stated that he had received
D letter dated 11.8.1999 (Ex.Pl 8) and according to him he had put his initials
on it on the same date to acknowledge its receipt. He admitted that the letter
is addressed to the Executive Engineer but explained that since he was attached
to the office of Executive Engineer, the application was given to him by the
Executive Engineer to acknowledge its receipt. In cross-examination the
E Accounts Superintendent admitted that Inward and Outwards Registers are
maintained in the office and in accordance with the normal procedure
applications or letters received by the Executive Engineer should have been
acknowledged by the Manager in the office. The Accounts Superintendent
also admitted that it was not his normal duty to receive any letter or application
and to acknowledge rhc same. But he tried to explain that as the Executive
F Engineer had instruded him to acknowledge the receipt, he had done so. He
admitted that the letter dated 11.8.1999 Ex.Pl 8 bears the initials of Executive
Engineer containing the date as 14.9.1999 and the said letter is entered at SI.
No.1862 in the Inward Register on 15.9.!999. He volunteered to add that the
relevant entry in inward registN wa;, m~de subsequently.
G On this state of evidence, on behalf of the appellant, it is argued that
the receipt of the letter Ex.PIS was not fonnally acknowledged on 11.8.1999
by the Executive Engineer who had put his initials on the said letter only on
14.9.1999.. The entry of its receipt was made in the Inward Register on
15.9.1999. These facts all indicate that the letter Ex.pl8 was actually not
H tendered oli 11.8.1999 to the Executive Engineer and a false case has been
R.B. PATIL v. SUBASH KALL UR [DHARMADHIKARI, J.] 153

set up to somehow get over the disqualification which the respondent suffered A
on the date of election.

Learned counsel for the respondent took us through all subsequent
·,.. correspondence exchanged between the respondent, the Executive Engineer
and Chief Engineer. Reliance is also placed on the letter sent by Executive B
Engineer in reply to the query of the election petitioner, to show that in all
of them, there is a mention of submission of letter by respondent on l l.S.1999
for seeking 'No Dues Certificate' and expressing his unwilligness to go ahead
with the remaining work of the contract. It is strenuously argued that this
Court should believe, as was done by the High Court, that in fact, on I l .S.1999
letter Ex.Pl S was tendered to the Executive Engineer with a desire to end the C
contract.

On the question of date of submission of the letter, learned counsel for
the respondent argued that the Executive Engineer, who was summoned by
the appellant as PW2, testifies the fact that on l 1.S.1999 letter Ex.PIS was
submitted to him. It is argued that the appellant did not cross-examine the D
·Executive Engineer and having failed to do so this Court should reject the
case of the appellant that the aforesaid letter was not, in fact, presented to the
Executive Engineer on the date mentioned in it.

Having carefully gone through the contents of the letter dated l l .S.1999 E
Ex.PIS, the affidavit Ex.P7, the subsequent correspondence and the oral
evidence on record, we have come to the conclusion that the appellant has
been able to establish that the letter dated 11.8.1999 is not a genuine document.
It was not presented on 11.8.1999 as is shown to have been so presented to
the Executive Engineer before the scheduled date of election.
F
We are not at all impressed by the argument that the Executive Engineer
examined as PWL by the appellant ought to have been cross-examined by th~
appellant and in absence thereof, the case of the appellant that the letter dated
l l.S.1999 was an interpolated document should be rejected. The appellant
had summoned the Executive Engineer with the original documents alleged G
to have been presented before him. From his statement in examination-in-
chief and cross-examination, the appellant has amply demonstrated that
deviating from the normal laid down official procedure, the Accounts
Superintendent acknowledged receipt of the letter instead of the Executive
Engineer to whom it was personally presented or the Manager of the office.
What appears to us is that it was actually received by the Executive Engineer H
154 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A only on 14.9.1999 when he had put his initials on the same. The letter finds
mention of its receipt in the entry of the Inward Register made on 15.9.I999.
The appellant as the election petitioner having proved the above circumstances
from the documents produced through Executive Engineer, the burden shifted
to the respondent to prove that before the due date of election he had submitted
B on 11.8.1999 an application expressing his desire to terminate the contract
unilaterally. This burden of proof squarely lay on the respondent which he
could have discharged by rebuttal evidence.

The respondent examined himself in support of his case that the letter
dated 11.8.1999 Ex.P 18 was submitted personally. The respondent examined
C the Accounts Superintendent as RW2. They have both been effectively cross-
examined by the appellant. The above named witnesses have not been able
to explain why in accordance with the normal official procedure the receipt
of the letter dated 11.8.1999 was not formally acknowledged in writing by
either the Executive Engineer as the Competent Authority or the Manager of
the office. They also could not explain why entry in the inward Register was
D not made on same or subsequent day. Merely because in all subsequent
correspondence there in mention of such a letter, the case of respondent
cannot be accepted that in fact on 11.8.1999 the letter was submitted to the
Executive Engineer. The subsequent correspondence admittedly had taken
place after the election. The documentary and oral evidence on record cast
E a serious doubt on the authenticity of the letter Ex.PIS. We are not prepared
to believe that it was handed over to the Executive Engineer personally on
11.8.1999 as has been sought to be projected on behalf of the respondent.

Next we consider the authenticity of the affidavit Ex.P7, which is said
to have been submitted on 13.8.1999, on the alleged instruction of the
F Executive Engineer and two days after the letter dated 11.8.1999 was alleged
to have been submitted to him. We have already held above that the case of
the respondent that on 11.8.1999 he had submitted letter Ex.P 18 to the
Executive Engineer cannot be believed. The further case of the respondent
based on that letter of having filed an affidavit on 13.8.1999 on instruction
of the Executive Engineer, for the same reason, cannot be believed. In
G accordance with the laid down procedure, there ought to have been an entry
of this affidavit in the Inward Register. This omission has not been explained
by the Executive Engineer. Learned counsel for the respondent made strenuous
effort to persuade us to accept the authenticity of the affidavit and date of its
submission. From the contents of the original affidavit attention of the Court
H is invited to the portion at the top of the affidavit having entry of 'Notarial
R.B. PATIL v. SUBASH KALLUR [DHARMADHIKARI, J.] 155
Register No.1400 page No.138 with 'date' mentioned as '13.3.1999'. It is also A
pointed out that it contains seal of the Notary. Much emphasis is laid on the
fact that at the bottom of the affidavit shown as sworn and notarized on
13.8.1999, there are initials put of its receipt on 13.8.1999 with seal mentioning
office of the Executive Engineer, Irrigation Project Construction, Division
No. 3, Sulepeth, Taluk-Chincholi. It is also tried to be shown that the stamp B
of Rs. 50 on which affidavit seems to have been prepared through Notary is
shown to have been purchased on the same day i.e. 13.8.1999. It is submitted
that the original contents of the affidavit with the stamp, seals and initials put
for acknowledgment of its receipt, clearly go to show that it was a genuine
document prepared and presented on the date as shown in the document.
c
Having carefully scrutinized the contents of the affidavit and the oral
evidence of the witnesses examined in respect thereof, we find it difficult to
accept the claim of the respondent that the affidavit (Ex.P7) was presented
in the office of the Executive Engineer on 13.8.1999. We have nothing before
us to doubt the records of the Notary but it appears unbelievable that both,
the letter dated 11.8.1999 and affidavit dated 13.8.1999, although submitted D
... in the office of the Executive Engineer, instead of having been acknowledged
by the concerned Executive Engineer or the Manager of the office, would
have been, contrary to the normal official procedure, acknowledged by the
Accounts Superintendent. The respondent has very categorically stated in
cross-examination thus:-
E
"I do not know who has received the affidavit as per Ex.RIO and
made endorsement to the said affidavit for having received the same
since I was waiting in the office at that time."

This part of the statement in cross-examination of the respondent makes p
it clear that the respondent himself was not personally aware as to who had
put initials in the office of the Executive Engineer on the affidavit marked as
Ex.R.10 (a) and acknowledged its receipt (Ex. P. 19). It seems highly
improbable that at a time of presentation both of letter dated 11.8.1999 and
affidavit dated 13.8.1999, the respondent, who was keen to contest the election,
would not have insisted on obtaining a separate formal acknowledgment of G
the presentation and receipt of the letter and affidavit from the Executive
Engineer to whom the documents are alleged to have been personally handed
over. It is most unlikely that on such vital matter concerning his qualification
to contest the election the respondent would have felt contended by merely
obtaining initials on his personal copies of the letter and affidavit which he H
156 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A alleges to have retained with him for election purposes.

On the contested issue of date of submission of the affidavit, the
Executive Engineer as PW2 in his deposition states:

"This Ex. P7 was submitted by the first respondent on 13 .8.1999 and
B it was received by the Accounts Superintendent in our office."

The respondent examined the Accounts Superintendent Shri Srikant
Deshpande RW2 but the affidavit was not put to him to prove that in the
.. -

copy of the affidavit retained by the respondent, at its bottom the respondent
had put initials by writing "receipt" and date "13.8.1999". The burden of
C proof that the affidavit was filed by the respondent in the office of the
Executive Engineer on 13.8.1999 i.e. before the scheduled date of election,
was squarely on the respondent , more so, when the appellant has Jed evidence
to prove that affidavit dated 13.8.1999 was never formally received by the
department in the office of the Executive Engineer on 13.8.1999.
D
In. our considered opinion, therefore, the appellant has satisfactorily
proved his case that both the documents i.e. Jetter dated 11.8.1999 and affidavit .~

dated 13.8.1999, were neither formally tendered nor officially received in the
office of the Executive Engineer on the dates respectively shown on them.
The respondent has miserably failed to dispel the doubt created on the fact
E and date of submission of the letter and the affidavit.

However, presuming that letter dated 11th August, 1999 was submitted
to the Department. Thereafter, an affidavit was filed on 13th August, 1999,
yet it is not possible to hold that the returned candidates terminated the
F subsisting contract with the Government.

A close reading of the contents of letter dated 11.8.1999 (Ex. P.18),
makes it~ meaning plain. The respondent thereby claimed to have completed
the work' of civil construction awarded to him and on such assumption, he
requested for issuance of a 'No Dues Certificate'. The said letter as its language
G makes apparent was written on an understanding on the part of the respondent
that he had fully performed the contract. It appears, he wanted to bring his
case within the Explanation (quoted above) appended below Section 9A of
the Act which provides that for the purposes of Section 9A,'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
H by reason only of the fact that the government has not performed its part of
R.13. PATIL v. SUl3ASH KALLUR [DllARMADHIKARL J.] 157
the contract either wholly or in pa11'. A
The contents of the letter on a plain reading does not convey an intention
on the part of the respondent to unilaterally tenninate the contact regardless
of the fact whether it has been completed partially or fully. On behalf of the
respondent learned counsel placed heavy reliance on the language employed
in paragraphs 4 & 5 of the affidavit dated 13.8.1999 (Ex. P7). It is pointed B
out that in those paragraphs of the affidavit clear mention has been made of
the fact that respondent had already made earlier an application to terminate
the subsisting contract between him and the Government of Karnataka. It
also contains intimation to the Government to take up the balance work at the
risk and cost of the Contractor. On the above-described language of the C
affidavit, it is submitted that the contract was unilaterally put to an end.

We have already held that the genuineness of the affidavit and its
submission on 13.8.1999 is in grave doubt. We have rejected the case that
letter on I I .8. I 999 and affidavit on I 3.8. I 999 were tendered in the office of
the Executive Engineer. The reference in paragraph 4 of the affidavit to an D
'earlier application' of the respondent to terminate the subsisting contract is
to none other than the letter dated I I. 8.1999 Ex. P. I 8. It is not the case of
the respondent that before I 3.8. I 999 any other letter, apart from the or.e-
dated I I .8. I 999 (Ex. P.18) had been submitted by the respondent. The
reference in the affidavit dated 13.8.1999, therefore, is undoubtedly to the E
letter dated I 1.8. I 999 Ex. P. I 8. The contents of the latter, as we have
understood and held above, merely show a desire to obtain 'No Dues
Certificate' on a claim that contract had been fully performed. In the affidavit,
a part of the statement made is contrary to the contents of the letter. In the
letter, it is stated that the contract has been "completed" whereas in the
affidavit, it is stated that it "has been executed partially". In the last part of F
the affidavit reference is made to the application earlier made to terminate the
contract as the Contractor intended to contest the election. The letter and
affidavit were clearly with a view to request the departmental authorities to
take action on their part to formally terminate the contract ;vith cost and
expenses to be borne by the Contractor. None of the two documents from t_he G
language employed therein seem to the convey an unequivocal intention on
the part of the contractor to term in ate the contract by treating the same as the
breach of it on his part.

On behalf of the respondent, reference was made and reliance placed
on the decision of this court in the case of Prakash Khandre v. V.K. Khandre, H
158 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A JT 2002 Supp. I SC 317 to which one of us Brother M.B. Shah J, was party
and who had delivered the opinion on behalf of the Bench. We have looked
into the case of Prakash Khandre (supra). It is clearly distinguishable on the,
basis of contents of the letters and notices exchanged therein which indicated
a very clear unequivocal intention on the part of the contractor to terminate
B the co~tract regardless of the consequences of the breach.

In the case of Prakash Khandre (supra), in one of the letters of the
contractors sent to the department before the date of election, it was indicated
clearly as under:-

"As you may be aware the Election Commission of India has issued
c the calendar of events. The last date for submitting the nomination is
18.8.1999. For the reasons beyond my control, I would not complete
those works and I will not be in a position to complete the aforesaid
work on or before 18.8.1999. Right to contest the election is my
fundamental right. I want to exercise that fundamental right by
D contesting the ensuing assembly election. In view of Section 9A of
'the Representation of People Act, 1951, the existing contract between
me and the government is causing me undue hardship and is coming
in the way of my contesting the ensuing assembly election. Having
regard to various facts and circumstances, I have decided to request
you to tenninate all the existing contracts subsisting between me and
E the government forthwith. Further, I request you to cancel my
registration as class-I contractor with the department thereby putting
an end to any sort of subsisting contractual relationship between me
and the government. Further, there are several contractors in Bidar
district who are ready and willing to undertake the said work and
F complete the same on the same rates and conditions which is given
to me in the subsisting contract between me and the government."

In is on the basis of the contents of such letters and other letters
exchanged between the parties that the court in case of Prakash Khandre
(supra) came to the· following conclusion:-
G
"From the evidence and the correspondence produced between the
appellant and the department, it is crystal clear that the appellant
terminated the subsisting contracts and the departments accepted it.
Hence, contracts were brought to an end by the parties. Department •
also permitted the remaining works to be carried out by Mallikarjun
H
R.B. PATIL v. SUBASH KALL UR [DHARMADHIKARI. J.] 159

Khandre. In this view of the matter, the finding given by the High A
Court that work of effective improvement and asphalting of Halburga-
Bawgi-Kamtana road continued and, therefore, contract was subsisting
is erroneous."

On the above mentioned peculiar features of the case of Prakash
Khandre (supra), the decision rendered by this court in that case is of no B
assistance to the respondent in supporting his case that, well before the date
of election, he had unequivocally terminated the contract subsisting between
him and the department. In the case before us, contents of the letter dated
11.8.1999 (Ex. P. 18), do not contain any intention to terminate the contract.
It contains only a request for issuance 'No Dues Certificate' on the assumption C
that the work has been completed. The affidavit alleged to have been submitted
by the respondent two days thereafter only makes mention of the earlier
letter, and desires action on the part of the government for terminating the
contract. The following contents of the affidavit very clearly convey such
intention:-·
D
"I humble state that, I intend to contest the ensuing election of
Karnataka Legislative Assembly, I submitted the application to
terminate the subsisting contract between the government of Karnataka
and the said application is under consideration. Balance work, if
any, may be taken up at my risk and cost for which I am agreed."
E
[emphasis supplied]

Assuming, therefore, that the letter (Ex. P. 18) and the affidavit (Ex.
P.7) were in fact submitted on the dates mentioned respectively in them, it
is not possible to come to the conclusion that respondent as contractor had F
on his part terminated the contract by withdrawing from the contract and thus
committing a breach. The contents of both the documents clearly desire an
action on the part of the government of terminating the contract. The conclusion
in the case of Prakash Khandre (supra) turned on the contents of the letters
and notices exchanged therein and is clearly distinguishable on peculiar facts
therein as discussed above. G

There is ample documentary and oral evidence to show that the contract
came to be terminated legally and formally only after a proposal was moved
by the Executive Engineer in that direction. Such proposal was initiated by
Executive Engineer only on 8.2.1999 (Ex. P9) which was followed by proposal H
160 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A of Superintending Engineer to the Chief Engineer by letter dated 3.2.2000
Ex.PIO. Exchange of correspondence then took place inter se between SE
and the Chief Engineer (Ex. Pl I to Ex. P. 13). In all the above inter-
departmental communications it has been stated that the Contractor had not
completed I 0% of the work awarded to him. The Chief Engineer granted
B formal permission for rescinding the contract only on 5.9.2000 by his
communication (Ex. P21) to that effect sent to the S.E. These facts have been
confirmed in the deposition of the Chief Engineer Of the project on the basis
of records shown to him when he was examined as PW4.

Thus, we find that there is neither unilateral nor mutual termination of
C subsisting contract by respondent no. I. In the affidavit dated 13 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
D te1mination of the contract, as advanced by the learned counsel on behalf of
the returned candidate before u~, there is nothing on record except the pleas
developed. step by step which varied from the stage cf filing written statement
to oral evidence and thereafter at this appellate stage.

E 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 th'e contract.

F Our conclusion is that the returned candidatecl 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 I 0 per
cent of remaining work. His election is, therefore, liable to be set aside on
the ground made out under Section I 00 of the Act.

G In the result, this appeal succeeds and is allowed. The order of the High
Court dated I 0th April 200 I passed in Election Petition No. 13/99, is hereby
set aside.

The election of the respondent as Returned Candidate to the Karnataka
H Legislative Constituency No. 5, Humnabad is declared to be void. The
R.B. PATIL v. SUBASH KALLUR [DHARMADHIKARI, J.) 161

necessary intimation of the result of this appeal be sent to the Election A
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.

K.K.T. Appeal allowed. B