Dismissed

The Chief Electoral Officer v. Irshad Alam

Kerala HC12 Oct 2022WA/1471/2022

Case brief

AI extract

What is this about?

In this intra-court appeal, the High Court of Kerala dismissed the writ appeal filed by the Chief Electoral Officer. The court held that no jurisdictional error existed to warrant interfering with the single judge's order directing the release of funds due to contractors for election printing works.

What did the court decide?

The writ appeal was dismissed; pending interlocutory applications closed.

The Chief Electoral Officer Vs Irshad Alam — Contract and Commercial Disputes | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 12TH DAY OF OCTOBER 2022 / 20TH ASWINA, 1944

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WA NO. 1471 OF 2022

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AGAINST THE JUDGMENT IN WP(C) 12046/2022 OF HIGH COURT OF KERALA

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APPELLANT/1ST RESPONDENT:

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THE CHIEF ELECTORAL OFFICER

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OFFICE OF THE CHIEF ELECTORAL OFFICER,
ELECTION DEPARTMENT, KERALA LEGISLATIVE COMPLEX,
VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033.

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BY ADV DEEPU LAL MOHAN

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RESPONDENTS/WRIT PETITIONERS & RESPONDENTS 2 & 3:

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1 IRSHAD ALAM

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AGED 51 YEARS, S/O.SHAHUL HAMEED,

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PROPRIETOR, CYBER PARK,
COCHIN UNIVERSITY ROAD,
KALAMASSERY, COCHIN - 682 022.

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2LAKSHMI NARAYANAN T.K.
S/O.T.S.KRISHNAN, PROPRIETOR,
AMBAL QUICK PRINT SHOP,
SULTAN PET, PALAKKAD - 678 001.

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3 CHATHERINE JOHNSON AGED 70 YEARS, W/O.JOHNSON, PROPRIETOR, BHAVANA PHOTOSTATS,

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MO ROAD, THRISSUR - 680 001.

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4 ROY THOMAS

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AGED 38 YEARS, S/O.THOMAS, PROPRIETOR,
IMAGE PRINT SOLUTIONS, 25/241/1, SS COIL ROAD,
THIRUVANANTHAPURAM - 695 001.

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5 ORANGE PRINTERS PVT.LTD. TC 81/1227, GANDHARI AMMAN COIL JUNCTION, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR ROY THOMAS, PIN - 695 001.

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W.A.No1471 of 2022

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6 THE JOINT SECRETARY AND JOINT CHIEF ELECTORAL OFFICER, ELECTION (GENERAL) DEPARTMENT, KERALA LEGISLATIVE COMPLEX, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033.

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7 KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION LTD. (KELTRON) REPRESENTED BY MANAGING DIRECTOR, KELTRON HOUSE, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 010.

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SRI.T.A. UNNIKRISHNAN
SMT.M.A.ZOHRA
SR. GP SRI.V.TEKCHAND

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
12.10.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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W.A.No1471 of 2022

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JUDGMENT

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Dated this the 12^th day of October, 2022

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Shaji P.Chaly, J.

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The captioned appeal is filed by the 1^st respondent in W.P.(C)No.12046 of 2022 challenging the judgment of the learned single Judge dated 15.09.2022 whereby the writ court allowed the writ petition directing the appellant to release the amounts due to the petitioners evident from the statement filed by M/s.KELTRON – the 7^th respondent in the appeal, within two months from the date of receipt of a copy of the judgment, with a further direction to M/s.KELTRON to pay the amounts due to the petitioners for their works within one month.

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The subject issue relates to a contract entered into by and between the appellant and M/s.KELTRON for executing certain works in connection with the general election 2021. Out of the several works under the contract, M/s.KELTRON executed the printing works for the appellant, through the

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W.A.No1471 of 2022

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writ petitioners. However, certain disputes arose in respect of the confidentiality agreed to be maintained by and between the appellant and M/s.KELTRON and consequent to which, investigation is being carried out by registering a crime. However, on that ground, the payments due to M/s.KELTRON on account of printing works also was detained by the appellant, consequent to which, payment was not made to the writ petitioners by M/s.KELTRON. It was thus seeking appropriate directions to the appellant as well as M/s.KELTRON, the writ petition was filed.

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The learned single Judge, after taking note of the situations emerging from the facts and circumstances, has entered into a finding that the appellant cannot wriggle out of its liability by contending that there is no privity of contract between the appellant and the writ petitioners. It was further found that registration of Crime No.152/2021 by the Crime Branch Police Station, Thiruvananthapuram in respect of the confidentiality issue, the writ petitioners have absolutely no role and it is not a justification for denying the payment

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W.A.No1471 of 2022

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legitimately due to the petitioners. Anyhow, it was also observed that the State Government has decided to withhold 50% of the payment due to M/s.KELTRON till the investigation by the Crime Branch attains finality.

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We have heard learned counsel Sri.Deepu Lal Mohan for the appellant and perused the pleadings and the material on record.

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The paramount contention advanced by the appellant

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is that by virtue of Exhibit R1(b) agreement, M/s.KELTRON cannot sub-contract the work without securing prior consent from the appellant. In that regard, learned counsel has invited our attention to clause 5 of the agreement, which reads thus:

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“5. CEO and the Recipient have agreed to enter into and execute this Agreement on the terms and conditions set forth herein below. Recipient hereby agrees and undertakes that any sub-contracting of the services (governed by this agreement) shall only with prior and express written permission of the CEO and that the Recipient shall execute a separate Confidentiality and Non-Disclosure Agreement with the firm/all the

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W.A.No1471 of 2022

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employees involved in the sub-contracted delivery of Services under this Agreement.”

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So also, learned counsel has invited our attention to clause 18 of the agreement, which reads thus:

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“18. It is agreed between the Parties that in the event of any breach or default or offence committed by the Recipient under this Agreement, CEO shall be entitled to take appropriate legal action against the Recipient, both civil as well as criminal, under the Official Secrets Act, 1923, Indian Penal Code, 1860, Information Technology Act, 2000, or any applicable laws prevalent in India or any other relevant statutory enactment or legislation in India. In such an eventuality, CEO further reserve its right to take any other appropriate action, in law or otherwise, against the Recipient, as it deems fit and necessary. The Recipient agrees that nothing in this Agreement constitutes a waiver by CEO of the right to prosecute the Recipient for any statutory violation.”

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But fact remains, it is clear from Exhibits P5 and P6 orders of the appellant dated 09.02.2012 and 10.09.2012 that on earlier occasions, M/s.KELTRON was given the liberty to prepare a panel of printers by observing procedural formalities. It is also evident from Exhibits P5 and P6 that the

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W.A.No1471 of 2022

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panel was prepared in order to print the required documents for the use of the Chief Electoral Officer. Therefore, it can be seen that even if as per clause 5 of Exhibit R1(b) agreement, it is stated that sub-contracting may not be done overlooking the conditions contained under the agreement, we are of the view that the Chief Electoral Officer is well aware of the fact that the M/s.KELTRON is not engaged in printing and if a contract is awarded along with other matters for printing and supply of photo electoral rolls etc, the Chief Electoral Officer is well aware that M/s.KELTRON can discharge the said obligation undertaken only by engaging the said work to other sub-contractors. This is quite clear and evident from Exhibits P5 and P6 orders issued by the Chief Electoral Officer dated 09.02.2012 and 10.09.2012.

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It was taking into account all the aforesaid factual, legal as well as the contractual obligations undertaken by and between the parties alone, the learned single Judge has issued the directions, bearing in mind that the investigation conducted on the basis of Crime No.152/2021 would not

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W.A.No1471 of 2022

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stand in the way of the appellant releasing sufficient fund to M/s.KELTRON, in order to release the same to the writ petitioners, who were engaged only in printing duties from and out of the contract executed by and between the appellant and M/s.KELTRON. Even though a contention is advanced by the appellant that there is no privity of contract by and between the appellant and the writ petitioners, to seek directions for release of the amounts to the writ petitioners, it is significant to note that the learned single Judge has only directed the appellant to release the money to M/s.KELTRON alone; and in turn only directed M/s.KELTRON to disburse the amounts due to the writ petitioners. Therefore, there is no great force in the said contention also.

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Having gone through the facts and figures and material on record, we are of the definite opinion that the appellant has not made out any case of jurisdictional error or other legal infirmities justifying us to interfere in an intra court appeal filed under section 5 of the Kerala High Court Act, 1958.

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W.A.No1471 of 2022

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Needless to say, writ appeal fails. Accordingly, it is

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dismissed.

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Pending interlocutory applications, if any, shall stand

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closed.

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Sd/-

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S.Manikumar Chief Justice

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Sd/-

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Shaji P.Chaly Judge

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vpv

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//true copy//

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P.A. to Judge

The Chief Electoral Officer v. Irshad Alam

Case brief

What is this about?

What did the court decide?

The Chief Electoral Officer v. Irshad Alam

Case brief

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