1986 PLP 987 (CLC)

It would be pertinent to point out at this stage that Article 10(2)(b)(8) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 contemplates, inter alla, disqualification on the grounds that the candidate has any share or interest in a contract, not being a contract between a co‑operative society and Government for supply of goods to, or for the execution of any contract or the performance of any service under-taken by the Government. Further Article 11(2) of the same order mentioned above provides that person shall be disqualified from being, elected as and from being a member of Provincial Assembly, if he is subject to any of the disqualifications specified in Article 10(2) of the said Order. Respondent No. 1 Junaid Soomro has filed his written statement in which it is admitted to the extent that he was enlisted as an approved Contractor in Class 'B' in the Office of Superintending Engineer, Highway Circle, Sukkur for the calendar year 1982 and after the expiry of that year he did not apply for renewal. Respondent No. 1 further stated that he was awarded contract for constructing a portion of Garhi Yasin Ruk Road on 1st October, 1982 and that contract was duly executed and the final payment was made by the Department, vide voucher, dated 12th June, 1983 as stated in the confidential letter, dated 4th March, 1985 addressed to the Superintending Engineer, Highway Circle Sukkur by the concerned Executive Engineer. According to the respondent No. 1, there were no further dues as such on the nomination date there was no subsisting interest in the contract. With regard to the other contract, it is stated by respondent No. 1 that this contract was awarded to him and the work was to be completed by 5th January, 1984 but the answering respondent executed a part of the work and abandoned the remainder. He accepted final payment of Rs.23,106 towards the actual work done by him on 8th August, 1984. It was further stated by the answering respondent that due to unreasonable attitude of subordinate Officers of the said Department, he was unable to continue the work as a Government Contractor and had abandoned completely the contract in question which he was entitled to do under the terms of the contract to the knowledge of the officers concerned. This was confirmed by letter, dated 12th August, 1984. It was further stated that order granting extension for the execution of work after 8th August, 1984 has been kept on record by the Executive Engineer as a matter of contrivance by the petitioner. The answering respondent has also pointed out in paragraph 8 of the written statement that the petitioner, who is a local, knew him very well and did not raise any objection on the day of the nomination and did not file any appeal against the acceptance of the nomination form of respondent No.

1. My learned predecessor with consent of the parties framed only one issue which is to the effect whether or not on nomination day respondent No. 1 held contracts with the Highway Department, Sind and thus was disqualified from being elected as member of the Provincial Assembly. Petitioner Mahboob Ali filed his affidavit‑in‑evidence in which same facts as were stated in the petition are reiterated and further in support of assertion that respondent No. 1 Junaid Soomro was Contractor on the day of nomination petitioner has produced five documents which are exhibited P/1, as P/2, P/3, P/4 and P/5. These documents have been obtained from Office of the Highway Division. Strangely enough cross‑examination of the petitioner is very short and sketchy. Only one question was put to him which is to the effect whether he raised objection against the nomination papers of respondent No. 1 to which he replied that he did so verbally but not in writing. To another question whether it is said so in the petition, he admitted that this fact is not mentioned by him in his Election Petition. One other question was suggested to him that documents produced by him were obtained from Mr. N.A. Khawaja under pressure and this witness replied in negative. This shows that no serious challenge was made to what was deposed by this witness and the documents he produced in support of his claim. Since the contesting parties proposed to summon a large number of documents from the record of Office of Superintending Engineer, Highway Division hence Mr. Neezar Ali Khawaja, Executive Engineer, Highway Division, Sukkur was summoned alongwith record and examined. He deposed before the Tribunal that he had brought the relevant record and further stated that Mr. Junaid Soomro, respondent No. 1 is enlisted as 'B' Class Contractor with the Highway Division, Sukkur, vide letter Exh. P/1. The Department placed two contracts of respondent No. 1 for contruction of roads known as Garhi Yasin‑Ruk Road and Shikarpur Rustom Road, vide Exh. P/2 and P/3. He produced contracts executed one side by respondent No. 1 and on the other side by the Government and produced photo copy of contract‑relating to Garhi Yasin‑Ruk Road, Exh. and Shikarpur‑Rustom Road, as Exh. P/6. He further stated that under contract Exh. P. /6 Contractors had to start work on 5th lay, 1983 and to complete the same by 4th November, 1983. On this contract the contractor could not complete the work in time and the period was extended from time to time. Ist' all six extensions were given in respect of that contract and the last extension was granted upto 4th March, 1985, vide letter No. T.C./G. 55/612, dated 4th October, 1984 sent by the Office to respondent No.

1. The witness produced the Office copy ‑of the letter from the record which is Exh. P/7. The witness further stated that so far the work which was done under this contract, the Contractor received payments under four different vouchers which were produced Exh. P/8 to Exh. P/9. The last payment of Shikarpur‑Rustom Road contract was received by respondent No. 1 on 8th August, 1984 it was Rs.23,

106. This payment has been recorded in Exh. P./11. It was further deposed by this witness that the bills were signed by Assistant Engineer and then by the Executive Engineer but the final bill of the contract was not prepared as the extensions were given to the respondent No. 1, vide various letters, dated 1st February, 1984, 17th March, 1984, 24th March, 1984, 2nd May, 1984 and 4th August, 1984. These letters and office orders were communicated to the respondent No.

1. This witness further prepared report regarding both contracts and produced photostat copy thereof before the Tribunal as Exh. P.17. He further stated that final settlement of account of Shikarpur‑Rustom Road contract had not taken place as the work under that contract was abandoned by the contractor. With regard ‑to the other contract P.5, this witness stated that the work under the contract was complete but final accounts were yet to be settled. Extension for this contract was given, vide pro forma Exh. P.18. Under this contract last payment of Rs.26,261 was made to the Contractor on 12th June, 1983. Respondent No. 1 Junaid Soomro filed before the Tribunal affidavit of his evidence in which he took up the stand that contract awarded to him in respect of Garhi Yasin‑Ruk Road was finalised before 12th June, 1983 and final bill was paid to him on the same date, therefore, no other part of the same contract remained to be performed by him. Respondent No. 1 further stated that so far the second contract relating to Shikarpur‑Rustom Road was concerned, the contract was abandoned by him in accordance with the terms of the contract and after the abandonment of the contract he had no subsisting interest in that contract. He has further stated that he had accepted Rs.23,106 for the work already done by him in that contract before abandonment. He further stated that on 9th August, 1984, he executed power‑of‑attorney in favour of other person to continue uncompleted portion of the work of the contract and further stated that this document was never acted upon and is of no value. It is further stated by him that on 12th August, 1984 he addressed a letter to the‑ Executive Engineer, Highway Division, Sukkur stating therein that he was no more interested in being Contractor and the attorney can have it on his own. The stand taken by respondent No. 1 is rather very strange and it appears that he is blowing hot and cold in the same breath. He filed written statement on 16th April, 1984 in which there is no mention about the power‑of‑attorney executed by him in favour of‑another person to continue doing incomplete part of the contract. On the following day i.e. 17th April, 1985 he had filed his affidavit of evidence before the Tribunal and in paragraph 5 thereof stated specifically that he had executed power‑of‑attorney on 9th August, 1984 by which he intended that Department could get remaining part of the work of contract done from his attorney and subsequently on 12th August, 1984 he addressed another letter to Executive Engineer stating therein that he was no more interested in the contract and they could get the work done through his attorney on his own. This power‑of‑attorney is Exh. P.4 on the record and it shows that respondent No. 1 Junaid Soomro empowered Niaz Ahmad "to act on my behalf as I have no further interest to work as Government Contractor. In clause 2 it is provided that the said attorney will receive all cheques of payments in respect of two Works. It is obvious that in the power‑of‑attorney it is specifically provided that the Attorney would act on behalf of Junaid Soomro as such interest of Junaid Soomro shall continue in the contracts. "Respondent No. 1 Junaid Soomro in his cross‑examination stated that work under contract Exh. P.6 was commenced in May, 1983 and then there were gaps in the performance of the contract from May, 1983 to August, 1984 on account of behaviour of officials of the Department. He categorically stated that Mr. Feroze Shaikh, Assistant Engineer was very rude and inimical to him and used abusive language. He complained to the Executive Engineer and also to the Superintending Engineer. It was on that account that he completely abandoned his work and ceased to be a Government Contractor. It is interesting to note that in the power‑of‑attorney, respondent No. 1 has stated that he was executing the same for the reason that he was busy in his other personal works and was unable to appear in different Offices concerning his works with Highway Department, Sukkur Circle. When Neezar Ali Khawaja, Executive Engineer Highway Division, Sukkur was examined before the Tribunal, there was cross‑examination made to him on behalf of respondent No. 1 but no question was put to this witness with regard to the allegation that Mr. Feroze Shaikh, Assistant Engineer was rude, inimical and abusive to respondent No. 1 and such complaint was made by respondent No. 1 to Executive Engineer and Superintending Engineer against Feroze Shaikh. On the other hand, Mr. Neezar Ali Khawaja has produced a large number of documents from the concerned Department to show that respondent No. 1 was defaulting party in the performance of contract. One such document worth mentioning is Exh. P.18 on the record, which is signed by Assistant Engineer. This document is pro forma for extension of time limit in which Assistant Engineer has recommended extension from 6th June, 1983 to 30th June, 1983. Reason for extension is given as due to shortage of bitumen. In clause 9, there are remarks of Assistant Engineer in which it is stated that he. recommended extension free of fine. This recommendation was acted upon by the Executive Engineer, who granted extension free of fine as recommended by Assistant Engineer. Order of Exective Engineer is also on Exh. P.18. This document falsifies assertion of respondent No. 1 that there were gaps in the performance of Contract from May, 1983 to August, 1983 on account of misbehaviour of Mr. Feroze Shaikh, Assistant Engineer, who was very rude, inimical and used abusive language. On the other hand, evidence of Mr. Neezar Ali Khawaja, Assistant Engineer is very clear supported by documents on this point. Apart from his detailed deposition, he has given summary of the two Contracts in Exh. P.17, which is report prepared by him addressed to the Superintending Engineer on 4th March, 1985. According to this document construction of Garhi Yaseen‑Ruk Road began on 5th October, 1982 and was completed within permissible time limit. Last payment was made on 12th June, 1983 but the accounts were not finalised. So far the construction of Shikarpur‑Rustom Road was concerned, the work was started by the Contractor on 5th May, 1983 and the same was not completed within the prescribed time. Several extensions were granted with final extension upto 4th March, 1985 invoking penalty clause to keep the tender alive. In this context, reference can be made to documents Exh. P.12 to P/18. Exh. P.12 is letter, dated 1st February, 1984 from Executive Engineer addressed to respondent No. 1 in which request is made to him to resume the work on Shikarpur‑Rustom Road and complete the same within stipulated time. Exh. P.13 is letter, dated 17th March, 1984 extending the time limit to 20th March, 1984. It is mentioned in this letter that respondent No. 1 met the Executive Engineer in his office on 5th March, 1984 and promised that the work would be started and completed within a month. Exh. P.14 is letter, dated 24th March, 1984 in which time limit is extended upto 4th May, 1984. Exh. P.15 shows that time limit was extended upto 4th August, 18f4 Final extension was granted, vide letter Exh. P.7 upto 4th March, 1985. All these documents show that extensions were granted under clauses 2 and 6 of the Agreement. Evidence discussed above clearly shows that both contracts were subsisting at the time when the nomination paper was filed by responding No.

1. In the contract relating to construction of Garhi Yaseen Raju Road, accounts had not been finalised and in the contract regarding construction of Shikarpur‑Rustom Road work had not finished and extensions were granted from time to time by the Department. Respondent No. 1 has not been able to prove his own assertions. He has not produced any evidence documentary or otherwise to prove that accounts in the contract of Garhi Yaseen‑Ruk Road were finalised. Respondent. No. 1 in his written statement stated that contract with regard to the construction of Garhi Yaseen‑Ruk Road was duly executed and final payment was made to him and put reliance upon confidential letter of the Department, dated 4th March, 1985. This letter is Exh. P.17 on the record, which is signed by the Executive Engineer addressed to the Superintending Engineer giving summary of the two contracts of respondent No.

1. Even in this summary, it is specifically mentioned that account of the work is yet to be finalised. So far the second contract relating to the work of Shikarpur‑Rustom Road is concerned plea is taken by respondent No. 1 that he had accepted final payment for actual work done and the remainder was abandoned by him as such he had abandoned the contract and had no subsisting interest in it at the time of filing of nomination paper. In this context, it was stated that respondent No. 1 had authorised one Mr. Niaz Ahmad to act as Attorney to execute the remaining work of the contract. It is already held by me that the perusal of this document Exh. P.4 clearly shows that intention was to appoint Mr Niaz Ahmad as Agent of respondent No. 1 to act on his behalf to finalise the above‑said works. In any case, contract is an Agreement between two parties in which terms and conditions are specified by which both parties are legally bound. Clause 2 of the conditions of contract provides that time allowed for carrying out the work is the essence of the contract on the part of the contractor and if the work is not carried out within the stipulated time, the Contractor shall pay as compensation and amount equal to one per cent or such smaller amount as the Engineer may decide. Clause 3 speaks about abandonment of work owing to the serious illness or death of the Contractor or any other cause. Executive Engineer has been authorised to rescind the Contract or to employ labour paid by .the Public Works Department and to supply materials to carry out the work or to measure up the work of the contractor and to take such part thereof as shall be unexecuted out of his hands and to give it to another contractor to complete it and in such circumstances expenses incurred would be paid by the original contractor. It is further provided in clause 3 that in such eventuality, the contractor shall have no claim to compensation for any loss suffered by him and in case the contract is rescinded the contractor shall not be entitled to recover any sum for the work actually performed by him unless and until the Executive Engineer has certified in writing. Clause 6 authorises Executive Engineer to grant extension at any time before the date of completion on his own initiative as he may think necessary or proper. Clause 7 provides that contractor shall be furnished with a certificate of completion of work by the Executive Engineer and further that such certificate shall not be given if the work is incomplete. Clause 18 provides that work would be open to inspection and contractor or his responsible agent is required to be present. Clause 26 requires that work is not to be sublet and if the contractor attempts to do so, the contract can be rescinded by the Engineer in charge resulting in forfeiture of security deposit, Incidentally, last clause in the contract is 48 and underneath that respondent No. 1 has signed as Contractor and Executive Engineer has signed as the other party. Qause 48 is reproduced as under:‑ "certified that no member of Legislative Assembly is in partnership with me and that Government will have the right to terminate the contract at any stage if it is discovered that a member Legislative Assembly is a partner in the contract." On behalf of the petitioner, Mr. Khalid Ishaque, Advocate contended that in this case contract could not be abandoned unilaterally and abandonment of work does not mean abandonment of contract as such and for abandonment of the contract there should be consent of both the parties. He further argued that on the date when the nomination papers were filed contracts between the parties subsisted and respondent No. 1 had still a live interest in the contracts, which had not come to an end. He has referred me to power‑of‑attorney executed by respondent No. 1 in favour of Niaz Ahmad on 9th August, 1984 which shows that Niaz Ahmad was to act on behalf of respondent No. 1 to finalise the above‑said works and subsequent letter of respondent No. 1, dated 12th August, 1984 addressed to the Executive Engineer authorising Niaz Ahmad to complete the works on his own as respondent No. 1 himself could not complete the work. It was further submitted that there was no acquiesence from the Highway Department and in such circumstances contract could not be ended unilaterally. He has referred me to letter, dated 6th March, 1985 addressed to respondent No. 1 by the Executive Engineer in which it is stated that contract regarding construction of Shikarpur‑Rustom Road was rescinded by the Executive Engineer under clause 3‑A of the Agreement and further security deposit including earnest money were forfeited to the Government. This was' done on 6th March, 1985 and date of filing of nomination papers was 23rd January, 1985. In the circumstances, it can be said that contracts were subsisting on the date when nomination papers were filed. So far the legal position is concerned. Mr. Khalid Ishaque Advocate referred to sections 37, 39 and 55 of Chapter IV of the Contract Act. According to him one party could not unilaterally walk out of the contract unless consent to it is given by the other party. In support of this contention, he cited the case of Messrs A:C. Yousuf and Co. v. Messrs K.B.H. Habibullah & Co. P L D 1965 Kar. 374 with relevant observations in paragraphs 16 and 18... It has been observed in the reported case that the law seems to be clear that a wrongful repudiation in the absence of election by the other party leaves both of them with their rights and liabilities as if no repudiation had taken place. Further reliance was placed on the cases of Laliteshwar Prasad Sahi v. Bateshwar Prasad and others A I R 1966 S C 580 with relevant observation stated in paragraph 25 thereof, H.R. Annamali Mudaliar v. Devaraja Urs and others A I R 1968 Mys. 140 paragraph 21, Konappa Rudrappa Nadgonda v. Vishwanath Reddy and another AIR 1969 S C 447 at page 451 and Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others AIR 1954 S C

236. It is held in the last mentioned reported case that a contract for supply of goods does not terminate when the goods are supplied, it continues in being till it is fully discharged by performance on both sides. It cannot be said 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 is terminated. There was always possibility of the liability being disputed before actual payment was D made. It was true that 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. Mr. Khalid Ishaque Advocate further submitted that under section 55 ‑of the Contract Act if the contractor failed to do a certain thing before specified time then such part of the contract which was unexecuted becomes voidable at the option of the promisee, which means that acquiescence of the other side is very essential. In support of the proposition stated reliance was placed on the following cases, Muralidhai Chatterjee v . International Film Co. Ltd. A I R 1943 P C 34, Hindustar Construction Company v. The State of Bihar A I R 1963 Pat. 254, Heyman and another v. Dawins Ltd. 1942 (1) All England Law Report; 337 at 340‑G, Messrs Haji Hasham Haji Ahmed and Bros. v. Messr, Trading Corporation of Pakistan Ltd. P L D 1977 Kar. 480 paragrapt 20 and Zaheer Ahmad and another v. Abdul Aziz 1983 SCMR

559. Ir the light of legal position stated above, it becomes clear that repudiatior of contract is not permissible under the law unless there is consen from the other side. In the instant case, even abandonment of work was not consented to by the Department what to talk of abandonment of the contract. I. there was consent from the Department then some further action a; contemplated under clause 3 of the contract either to rescined th4 contract or adopt one of many other methods would have been takes which was not done. Finally, contract was rescinded by the Departmen after the date of filing of nomination papers. For the facts and reasons mentioned above, I am of the considered view that contracts of respondent No. 1 subsisted at the time of filed of nomination paper and he was disqualified from contesting the election It was argued on behalf of respondent No. 1 that why such objection was not taken by the petitioner at the time when nomination paper were filed and why no Appeal was filed against the acceptance e nomination papers of respondent No.

1. Reply given by the other aid is that it occurred to the petitioner later that respondent No. 1 was Government contractor and further section 68 of the Representation o the Peoples Act, 1976 clearly allows to call in question election c returned candidate before the Tribunal on the ground that the return, candidate on the nomination day was disqualified from being elected a member. For reasons mentioned above, I hold that respondent No. stood disqualified on the day when nomination papers were filed of the reason that he was at that time a Government contractor as such allow the Election Petition and in consequence respondent No. 1 stand unseated and in his place I declare petitioner who has secured high, votes, to have won the Election relating to the Constituency mention above. A.A. Election petition allowed