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2001 DIGILAW 1084 (MAD)

R. Kannimuthu v. Rajendran

2001-09-14

FAKKIR MOHAMED IBRAHIM KALIFULLA

body2001
Judgment : 1. This civil revision has been preferred against the order of the Principal Civil Judge, Chengalput, dated 27.3.2001 made in O.P.No.118 of 2001, in and by which, the Court below allowed the O.P. preferred by the first respondent herein and thereby declared that the petitioner was disqualified to hold the Office of the President of the second respondent town panchayat. 2. According to the first respondent, the petitioner who was elected as Chairman of the second respondent Panchayat in the year 1996, awarded to himself five contracts worth several lakhs in the name of the third respondent who is his own dependant son and thus acquired interest in subsisting contracts relating to the second respondent which disqualified him to continue to hold the office of the President of the second respondent by virtue of Section 50(1)(d) of the Tamil Nadu District Municipalities Act. 3. Thesaid application was resisted by the petitioner contending that though the third respondent was his son, the petitioner had nothing to do with his business, that the third respondent inherited certain property of his grandfather and from the income derived from those properties, he was doing his own business by having a separate abode. He also contended that the first respondent having participated in all the discussions of the council meetings of the second respondent which led to the award of the contracts to the third respondent, cannot now be permitted to raise his objections by filing the present O. P. 4. The second respondent filed a separate counter contending that the solvency certificate issued by the Tahsildar dated 24.11.1998 revealed that the third respondent owned immovable properties of his own in certain survey numbers and considering the age of the third respondent, he was approved as a registered contractor. It was also contended that since the rates quoted by the third respondent was the lowest, the various contracts were awarded to him. 5. The third respondent in his counter contended that he was living separately and was having independent source of income. He would contend that the petitioner had no interest in the various contracts awarded to the third respondent. 6. 5. The third respondent in his counter contended that he was living separately and was having independent source of income. He would contend that the petitioner had no interest in the various contracts awarded to the third respondent. 6. The Court below framed three issues for consideration, namely, (1) whether the petitioner acquired any interest in the contracts allotted by the second respondent to the third respondent; (2) whether the petitioner was disqualified from holding the Office of President of the second respondent Panchayat and (3) to what relief, the first respondent was entitled to. 7. On the first two issues, the Court below came to the conclusion that the petitioner took the contracts in the name of his unmarried, undivided, dependent son, namely, the third respondent and as such he had every interest in the subsisting contracts with the second respondent. It also held that by virtue of the said conclusion, the petitioner came to be disqualified as per Section 50(1)(d) of the Tamil Nadu District Municipalities Act, herein after referred to as ‘the Act’. 8. Mr.K.V. Venkatapathi, learned Senior counsel appearing for the petitioner, contended that the conclusions of the Court below were not warranted, inasmuch as, even as per the admission of the first respondent in his evidence, no rule was violated in the matter of award of contracts to the third respondent and that the petitioner did not derive any benefit from out of the award of such contracts in favour of the third respondent. The learned counsel then contended that when the third respondent on his own carried out certain contracts of the second respondent, which contracts came to be awarded to him based on the majority decision taken in its council meeting, to which the first respondent was also a party, merely because, the third respondent was related to the petitioner as a son, it cannot be concluded that the petitioner acquired interest in subsisting contracts with the second respondent. 9. 9. Onthe other hand, Mr.T.Muruga Manickam, learned counsel appearing for the first respondent would contend that though the petitioner contended that he had nothing to do with the respondent in his personal affairs or business affairs, the fact that the third respondent was dependant on the petitioner was established beyond doubt, that the third respondent was admittedly a student even in the year 2000 while the contracts related to the period 1998-99, that the overwhelming evidence placed before the Court below did establish that the third, respondent continued to live only with the petitioner in the very same place where the petitioner was having his residence. It was also contended that the third respondent did not produce any income-tax return or any other acceptable evidence to show that he had his own source of income other than that of the petitioner to claim that he was standing on his own legs. The learned counsel would contend that when in law, the petitioner and his son, the third respondent were living together and the properties were owned in common by both of them, the initial presumption being Hindu undivided system of working, the burden was upon the petitioner to rebut the said presumption. The learned counsel relied upon Indranarayan v. Roop Narayanan and another , AIR 1971 SC 1962 in support of the above said submission. The learned counsel also relied upon Sewaram v. Sobaran Singh , AIR 1993 SC 212 : 1993 (2) Supp SCC 46 in support of his contention that when the person had subsisting contract while holding the Office of President, he was disqualified from continuing in such Office. The learned counsel also relied upon the Judgment of His Lordship Mr. Justice K.Govindarajan reported in Rajangam v. Mohammed Hani and another , 2000 (1) CTC 215 : 2000 (2) MLJ 51 where in, under identical circumstances, the learned Judge was pleased to hold that by virtue of Section 50(1)(d), if the member had any interest in a subsisting contract, that by itself would be sufficient to hold that he was disqualified from holding the post. The learned counsel pointed out that the said judgment of the learned single Judge was also confirmed by the Division Bench in W.A.No.2563 of 1999. 10. As against the above decisions cited on behalf of the first respondent, Mr. The learned counsel pointed out that the said judgment of the learned single Judge was also confirmed by the Division Bench in W.A.No.2563 of 1999. 10. As against the above decisions cited on behalf of the first respondent, Mr. K V. Venkatapathi , learned senior counsel relied upon the judgment reported in Tata Cellular v. Union of India , 1994 (6) SCC 651 , to contend that merely because the third respondent was related to the petitioner as his son, that by itself would not disqualify the petitioner from holding the Office. 11. Having heard the learned counsel for the parties and after perusing the order of the Court below, I am not convinced with the submissions of the learned counsel for the petitioner. The petitioner was not in a position to point out that the order of the Court below was in any way vitiated on any legal grounds. It is not the case of the petitioner that the conclusions of the Court below were not based on the evidence placed before it. Except pointing out that the first respondent admitted in his evidence to the effect that the petitioner was not in any way benefited with the contracts awarded to the third respondent and that the contracts were awarded to the third respondent by the second respondent by following the regular procedure, nothing else was pointed out. The petitioner could not show as to how the conclusions of the Court below were contrary to the evidence placed before it. 12. The petitioner could not show as to how the conclusions of the Court below were contrary to the evidence placed before it. 12. On the other hand, the learned counsel for the first respondent pointed out that under Exs.P.7 to P.9, and R.2 it was brought out that the various properties which were shown as securities by the third respondent while securing the contracts of the second respondent are the properties owned by his father who is none other than the petitioner, that the so-called certificate issued by the Taluk Supply Officer, Ex.R4, to the effect that the third respondent was living away from the petitioner at Chennai was itself dated 20.7.2000, long after the award and execution of the contracts by the second respondent with the third respondent, that under Exs.P.10, C.1 and R.1 , it was established beyond doubt .that the third respondent was living along with his father even as on the date when notice in the O.P. came to be served on the third respondent, that even as per the admission of the petitioner in his evidence, the third respondent was continuing his studies in the year 2000 and in the circumstances, it is too late in the day for the petitioner to contend that he had nothing to do with the contracts awarded by the second respondent to the third respondent. It was therefore contended that the petitioner had every interest in those contracts. I find force in the said submission of the learned counsel for the first respondent. 13. Mr. K.V. Venkatapathi, learned senior counsel appearing for the petitioner by referring Section 50(1)(d) of the Act, contended that the said provision can be applied only if the petitioner had acquired any interest in any subsisting contract with the second respondent, that when mere possession of his share in the ancestral property would not by itself mean that he acquired any interest, the order of the Court below cannot be sustained. The present case is not a case where the Court below has come to a conclusion that by virtue of the petitioner’s right as a sharer in the properties that were offered as a security for the award of the contracts in favour of the third respondent, the petitioner became disqualified. The present case is not a case where the Court below has come to a conclusion that by virtue of the petitioner’s right as a sharer in the properties that were offered as a security for the award of the contracts in favour of the third respondent, the petitioner became disqualified. On the other hand, the Court below, on a close reading of the evidence placed before it, both documentary as well as oral, reached a conclusion that apart from his interest in those immovable properties, the petitioner had every nexus to the contracts which came to be awarded in favour of the third respondent by the second respondent. The said conclusion was reached by the Court below on finding that the third respondent was only a name lender, inasmuch as, he was totally dependant on the petitioner in every respect. It is a finding of fact that the third respondent was living along with his father, namely, the petitioner throughout the execution of the contracts awarded to him, that the theory propounded by the petitioner that the third respondent was living away from him was not true, that the third respondent was only a student during the relevant period, that the petitioner was the manager of an undivided Hindu family and was acting as such, and therefore, the petitioner had every interest in the contracts awarded by the second respondent in favour of the third respondent. The Court below, thus found that the judgment of His Lordship Mr. Justice K.Govindarajan, reported in Rajangam v. Mohammed Hani and another , 2000 (1) CTC 215 : 2000 (2) MLJ 51 was squarely applicable in all respects to the case on hand and I too find no good grounds to differ from the said conclusion of the Court below. The Court below, thus found that the judgment of His Lordship Mr. Justice K.Govindarajan, reported in Rajangam v. Mohammed Hani and another , 2000 (1) CTC 215 : 2000 (2) MLJ 51 was squarely applicable in all respects to the case on hand and I too find no good grounds to differ from the said conclusion of the Court below. The judgment cited by the learned counsel for the petitioner reported in Tata Cellular v. Union of India , 1994 (6) SCC 651 was not concerned with the case of a disqualification of the authority who was holding office, but was concerned with the case as to the award of the contract, in a case, where in the committee constituted for taking a decision for award of such contracts consisted of several members and when the contract came to be awarded in favour of one particular company in which one of the members son was also an employee and therefore the contract awarded in favour of that company should be cancelled. The said contention was repelled by the Honourable Supreme Court. I therefore do not find any scope for applying the said decision to the facts of this case where we are concerned with the disqualification of the petitioner who was in the position of a decision-making authority and who awarded the contract to himself though the name of his son, the third respondent was used as a proxy for that purpose. As far as the contention, namely, that the first respondent admitted in his evidence that the petitioner was not in any way benefited would not in any way absolve the petitioner of his involvement in the contracts came to be awarded to his son, the third respondent. In any event, the overwhelming evidence available on record did establish beyond doubt that the petitioner had every nexus to the contracts awarded by the second respondent in favour of his son, the third respondent. The said unimpeachable evidence thus grossly militates against any contrary version of the petitioner. The conclusions of the Court below, thus, based on appreciation of the evidence placed before it, and there being no other legal infirmity pointed out by the petitioner with regard to the said conclusions, there is no scope for interfering with the conclusions of the Court below. The C.R.P., therefore, fails and the same is dismissed. No costs. The conclusions of the Court below, thus, based on appreciation of the evidence placed before it, and there being no other legal infirmity pointed out by the petitioner with regard to the said conclusions, there is no scope for interfering with the conclusions of the Court below. The C.R.P., therefore, fails and the same is dismissed. No costs. Consequently, C.M.P. is also dismissed.