Satya Dev Bushahri Vs. Padam Dev &
Ors [1954] INSC 94 (18 October 1954)
AIYYAR, T.L. VENKATARAMA MUKHERJEA, B.K.
BOSE, VIVIAN
CITATION: 1955 AIR 5 1955 SCR (1) 561
CITATOR INFO :
F 1956 SC 315 (2) F 1956 SC 335 (1)
ACT:
Representation of the People Act (XLIII of
1961), ss. 7(8) and 9--General Clauses Act (X of 1897), s. 3(8)-Government of
Part C States Act (XLIX of 1951), s. 17-Government contract with the Part C
State Government whether contract with the Central Government--And thus a
disqualification for election to Legislative Assembly of State under s. 17 of
Act XLIX of 1951 read with s. 7(d) of Act XLIII of 1951.
HEADNOTE:
Held, (modifying the view of law taken in
Civil Appeal No. 52 of 1954) that in view of section 3(8) of the General Clauses
Act, 1897, a contract with the Chief Commissioner in a Part C State (in this
case Himachal Pradesh Chief Commissioner) is a contract with the Central
Government and that would be a disqualification for election to the Legislative
Assembly of the State under section 17 of Act XLIX of 1951, read with section
7(d) of Act XLIII of 1951.
CIVIL APPEAL JURISDICTION: Civil
Miscellaneous Petition No, 641 of 1954, 72 562 Application for review of the
Judgment of this Court in Civil Appeal No. 152 of 1954.
N. C. Chatterjee (G. C. Mathur, with him) for
the petitioner.
Veda Vyas (S. K. Kapoor and Naunit Lal, with
him) for the respondent.
1954. October 18. The Judgment of the Court
was delivered by VENKATARAMA AYYAR J.-This is an application for review of the
judgment of this Court in Civil Appeal No. 52 of 1954.
That was an appeal against an order of the
Election Tribunal, Himachal Pradesh (Simla), dismissing a petition to set aside
the election of the respondent to the Legislative Assembly, Himachal Pradesh,
from the Rohru Constituency.
Two points were raised at the hearing of the
appeal before us: One was that the respondent was disqualified for election to
the Assembly under section 17 of Act No. XLIX of 1951, read with section 7(d)
of Act No. XLIII of 195 1, by reason of the fact that he was interested in
contracts for the supply of Ayurvedic Medicines to the Himachal Pradesh
Government, and the other, that he had appointed Government servants as polling
agents, and had thereby contravened section 123(8) of Act No. XLIII of 1951.
On the first question, we held that, on a
true construction of section 17, what would be a disqualification for election
to either House of Parliament under article 102 would, under that section, be
disqualification for election to the Legislatures of Part C States, and that
the disqualification under section 7 (d) of Act No. XLIII of 1951 would
accordingly be a disqualification under section 17 of Act No. XLIX of 195 1. A
further contention was then raised on behalf of the respondent that even if
section 7(d) were to be imported into section 17, that would not disqualify
him, because under that section, the disqualification must be to being elected
to either House of Parliament, and that under sections 7 and 9 of Act No. XLIII
of 1951, a contract to operate as a disqualification to the election to either
House of Parliament must be, with the Central Government, whereas 563 the
contracts of the respondent were with the Government of Himachal Pradesh. The
answer of the petitioner to this contention was that under article 239 the
administration of Part C States was vested in the President acting through the
Chief Commissioner or the Lieutenant-Governor, and that the contracts of the
respondent with the Chief Commissioner, Himachal Pradesh, must be held to be
contracts with the Central Government. We, however, disagreed with this contention,
and held that article 239 had not the effect of merging States with the Central
Government, and converting contracts with the States into those with the
Central Government.
In this application, Mr. Chatterjee appearing
for the petitioner invites our attention to the definition of " Central
Government " in section 3(8)(b)(ii) of the General Clauses Act. It is as
follows:
"Central Governmnet" shall in
relation to anything done or to be done after the commencement of the
Constitution, mean the President; and shall include in relation to the
administration of a Part C State, the Chief Commissioner or Lieutenant-Governor
or Government of a neighbouring State or other authority acting within the
scope of the authority given to him or it under article 239 or article 243 of
the Constitution, as the case may be." He argues that by force of this definition,
contracts with the Chief Commissioner of Himachal Pradesh must be treated as
contracts with the Central Government, and that in consequence, the respondent
was disqualified for election under section 17 of Act No. XLIX of 1951, read
along with section 7(d) of Act No. XLIII of 1951.
As against this, Mr. Veda Vyas for the
respondent relies on the definition of " State " in section 3(60)(b)
of the General Clauses Act, which runs as follows:
" State Government " as respects
anything done or to be done after the commencement of the Constitution, shall
mean, in a Part A State, the Governor, in a Part B State the Rajpramukh, and in
a Part C State the Central Government." 564 His contention is that there
being in the Constitution a fundamental distinction between the Government of
the Union and Government of the States, section 3(8) of the General Clauses Act
should be so construed as not to destroy that distinction, and that having
regard to the definition of " State " in section 3(60), it must be
held that to the extent the Central Government administers Part C States under
article 239, its character is that of the State Governments.
We are unable to agree that section 3(8) has
the effect of putting an end to the status of Part
C -States as independent units, distinct from the Union Government under
the Constitution. It merely recognies that those States are centrally administered
through the President under article 239, and enacts that the expression "
Central Government " should include the Chief Commissioner administering a
Part C State under the authority given to him under article 239.
Section 3(8) does not affect the status of
Part C States as distinct entities having their own Legislature and judiciary,
as provided in articles 239 and 240. Its true scope will be clear if, adapting
it, we substitute for the words " Central Government" in section 9 of
Act No. XLIII of 195 1, the words " the Chief commissioner acting within
the scope of the authority given to him under article 239." A contract
with the Chief Commissioner would, therefore, under section 9 read with section
3(8) of the General Clauses Act, be a contract with the Central Government, and
would operate as a disqualification for election to either House of Parliament
under sections 7(d) and 9 of Act No. XLIII of 1951, 'and it would be a disqualification
under section 17 of Act No. XLIX of 1951, for election to the Legislative
Assembly of the State.
It is argued for the respondent that this
construction would lead to this anomaly that whereas in the States in Part A or
Part B a contract with the State would operate as disqualification only for
election to the State Legislatures, such a contract would in Part C States
operate as a disqualification to be chosen, both to the State Legislature and
to either House of Parliament. That anomaly is undoubtedly 565 there. But the
contrary conclusion also involves the anomaly already pointed out, that in Part
C States a contract with the State Government is not a disqualification for
election even to the State Legislature, as it is in Parts A and B States.
Whatever the anomaly, in our view, the proper course is to give effect to the
plain language of the statute. We must accordingly hold that in view of section
3(8) of the General Clauses Act, a contract with the Chief Commissioner in a Part
C State is a contract with the Central Government, and that would be a
disqualification for election to the Legislative Assembly under section 17 of
Act No. XLIX of 1951 read with section 7(8) of Act No. XLIII of 1951.
This conclusion, however, can result in no
advantage to the petitioner, as the further finding of the Election Tribunal is
that no contracts of the respondent with the Himachal Pradesh Government were
proved to have been subsisting at the material period. That finding is, for the
reasons already given, not open to attack in this appeal, and is sufficient
answer to the objection that the respondent was disqualified under section 17.
The second point that was argued before us in
appeal was that the respondent had appointed certain Government servants to act
as polling agents, and had thereby committed a major corrupt practice under
section 123(8) of Act No.
XLIII of 1951. In rejecting this contention
we observed that, "as an abstract proposition of law, the mere appointment
of a Government servant as a polling agent in itself and without more" is
not an infringement of section 123(8). The correctness of this conclusion is
now challenged by Mr. Chatterjee. His contention is that having regard to the
nature of the duties of a polling agent as laid down by the Rules and fortifier
elucidated by the instructions contained in the Election Manual issued by the
Government, the polling agent must be held to be interested in the candidate
for whom he acts as polling agent, and that his employment would therefore be
hit by section 123(8).
Examining closely the duties of a polling
agent under the Rules and under the Election Manual, they 566 can be grouped
under three categories. The first category relates to the period of time
antecedent to the recording of votes. The duties of the polling agent at this
stage are to see that the ballot boxes are, to start with, empty, that the
names of the candidates and their symbols are correctly set out there on, that
the slits in the boxes are in an open position, that the knobs of the slits are
properly secured, and that the boxes are properly bolted and sealed. These are
duties which are cast on the presiding officer and the polling officers as
well, and as these are matters to be attended to before any recording or votes
begins, it is difficult to see how they -can be said to assist in the
furtherance of the election prospects of any one candidate more than of any
other. The second stage is when the polling is actually in progress. The duty
of the polling agent at this stage is to identify the voters. Rule 27 provides
that when there is a doubt as to the identity of a voter, the presiding officer
may interrogate the voter and that be should do so, if so required by a polling
agent.
Under rule 30, it is open to the polling
agent to challenge any voter on the ground that he is not the person whose name
is entered in the voters' list, and when such objection is taken, it is the
duty of the presiding officer to hold an enquiry and pass an order. The object
of these Rules is to prevent personation, and that is a matter in which the
duty is cast equally on the presiding officer. Rule 24 provides that, "The
presiding officer may employ at the polling station such persons as he thinks
fit to assist him-or any polling officer in identifying the electors.
The work of the polling agent under rules 27
and 30 is of the same character, and it cannot in itself be said to further the
election prospects of any particular candidate.
The third stage is reached after the polling
is over'. Then the boxes are to be examined with. a view to find out whether
the slits are open and the seals intact, the object of these provisions being
to ensure that the ballot boxes had not been tampered with during the time of
actual polling. Then the unused ballot papers, the tendered ballot papers and
other material documents-are required to be put in separate 567 packages, and
the polling agents have the right to seal all of them. It cannot be said that
in carrying out these duties the polling agent advances the election prospects
of the candidate, as they admittedly relate to a stage after the completion of
the polling. Indeed, the work of the polling agent both in the first stage and
in the last stage is similar in character, and neither can be said to
contravene section 123(8). As regards the second stage, as already stated in
our judgment, the duty of polling agent is merely to identify a voter, and that
could not by itself and without more be said to further the election prospects
of the candidate.
Reliance was placed by Mr. Chatterjee on the
following passage in Parker's Election Agent and Returning Officer, Fifth
Edition, at page 20:"The polling agents appointed for the same candidate
to attend the several polling stations at any election, are engaged on the same
duty and in the same interest, and it is generally very desirable that they
should meet, under the presidency of the candidate or his election agent,
before the opening of the poll for the purpose of mutual discussion and
co-operation." What that passage means is that as the duty to be performed
by the polling agents at the several booths is of the same character, it would
be desirable that they should all be assembled and their duties explained to
them. This has no bearing on the question whether those duties are such as must
inherently promote the election prospects of the candidate. A passage which is
more in point is the one at page 18, mentioning who could be appointed as polling
agents. It is as follows:
"Any competent person, whether an
elector or not, may be appointed as polling agent, provided he be not the
returning officer, the acting or deputy acting returning officer, or an officer
or clerk appointed under P.E.R., r. 27, or a partner or clerk of any of
them." In this connection, it must be noted that while section 41 of Act
No. XLIII of 1951 contains a prohibition against the appointment of certain
persons as election agents, there is none such with, reference to the
appointment of polling agents under section 46 of the 568 Act. To hold that
Government servants are, as such and as a class, disqualified to act as polling
agents would be to engraft an exception to the statute, which is not there.
Accordingly, we reaffirm the view taken by us
that the appointment of a Government servant as polling agent does not, without
more, contravene section 123(8). It is scarcely necessary to repeat our
observation in the original judgment that "if it is made out that the candidate
or his agent had abused the right to appoint a Government servant as polling
agent by exploiting the situation for furthering his election prospects, then
the matter can be dealt with as an infringement of section 123(8)." In the
result, this petition is dismissed; but under the circumstances, without costs.
Petition dismissed.
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