Nandi Infrastructure Corridor Enterprises Ltd. vs Election Commission of India

Nandi Infrastructure Corr.Ent.Ltd. & Ors. ...Appellant(s)

Versus

Election Commission of India & Anr. ...Respondent(s)

JUDGMENT

Dr. ARIJIT PASAYAT,J.

Leave granted.

Challenge in this appeal is to the order dated 8/5/2008 issued by the

office of the Chief Electoral, Karnataka, purporting to act in terms of the

directions of the Election Commission of India (in short `the Commission') under

Article 324 of the Constitution of India, 1950 (in short the `Constitution'). The

effect of the order was that no action was to be taken on the decision of the State

Government partially modifying the Government decision dated 30/4/2008 and

also not to take any further policy decision and action on the BMIC project -2-

till 28/5/2008, that is the date on or before which the Election process is to be

completed. The Commission further directed the State Government to cancel the

Government decision. On the basis of this directive the Government of Karnataka

by Government order No. PWD 53 CRM 2007 Bangalore, dated 9.5.2008, passed

the following order:

"PROCEEDING OF THE GOVERNMENT OF KARNATAKA

Sub:- Implementation of the Basngalore-Mysore Infrastructure Corridor Project (BMICP) under BOOT concept

Read:- 1. G.O.No. PWD 53 CRM 2007 30.4.2008.

2Letter No. DPAR 4356 ELN MCC 2008 dated 8.05.2008 from the office of the Chief Electoral Officer, Karnataka Bangalore.

GOVERNMENT ORDER NO. PWD 53 CRM 2007 BANGALORE DATED 09.05.2008

Pursuant to the directions of the Election Commission of India conveyed in the reference read at (2) above, the Government Order dated 30.4.2008 at (1) above is hereby withdrawn with immediate effect.

By Order and in the name of the President of India (M.Deviprasad) Under Secretary to Government Public Works, Ports and IWT Department

-3- By order dated 9.7.2008, this Court stayed the direction relating to

cancellation of the decision.

The Election Commission of India has filed an affidavit dated 30/9/2008,

inter alia, stating as follows:

"It is submitted that the use of the word `cancel' in paragraph

2 of its Order dated 8/5/2008 has been misread by the petitioners as it was only intended to mean that the implementation of decision of Government of Karnataka dated 30/4/2008 be cancelled and suspended during the ongoing electoral process between the 8/5/208 (the date of passing the Order by Election Commission) and the 28/5/2008 (the date on which the election process was to get over."

It is surprising that by jugglery of words the use of the expression

`cancel' in paragraph 2 of the order dated 8/5/2008 has been tried to be justified. If

that was the intention, the same should have been conveyed to the State

Government after the order of cancellation was passed. The expressions "cancel"

and "suspend" are conceptually different. At the same time there could not have

been cancellation and suspension. "Cancel" means to destroy the force,

effectiveness or validity of an order, a decision, to bring to nothingness.

"Suspend" means to debar temporarily a privilege or make temporarily

ineffective. To "suspend" is to take a temporary measure while to "cancel" has an

element of permanency.

-4-

Mr. G.E.Vahanavati, appearing for the State of Karnataka stated that the Government Order dated 9/5/2008 passed in line with the directives of the

Election Commission of India has been recalled and the Government desires to

implement the decision of the Karnataka High Court as upheld by this Court in

State of Karnataka & Anr. vs. All India Manufacturers Organization & Ors.

(2006) 4 SCC 683. In view of this Statement nothing further survives to be done in

this appeal. In any event after 28/5/2008 the whole position has changed.

The appeal is disposed of accordingly.

................ .J. (Dr. ARIJIT PASAYAT)

...................J. (V.S.SIRPURKAR)

....................J. (ASOK KUMAR GANGULY) New Delhi, February 4, 2009.