http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9

PETITIONER:

SATYA DEV BUSHAHRI*

Vs.

RESPONDENT:

PADAM DEV AND OTHERS.

DATE OF JUDGMENT:

25/05/1954

BENCH:

AIYYAR, T.L. VENKATARAMA

BENCH:

AIYYAR, T.L. VENKATARAMA

MUKHERJEA, B.K.

BOSE, VIVIAN

CITATION:

1954 AIR 587 1955 SCR 549

CITATOR INFO :

F 1956 SC 315 (2)

F 1956 SC 335 (1)

RF 1962 SC 145 (8,9)

RF 1975 SC2299 (412)

D 1985 SC 357 (15)

ACT:

Government of Part C States Act (XLIX of 1951), ss. 8 and 17

-- Whether exclude the application of s. 7(d) of the

Representation of the People Act 1951 to the elections

relating to Part C States -Representation of the People Act

(XLIII of 1951), ss. 33(2), 123 (8)-Proposing or seconding a

candidate by a person under s. 33(2) -Whether prohibited by

s. 123(8)-Mere Appointment of Government servant as polling

agent--Whether infringes s. 123(8).

HEADNOTE:

Section 17 of Act XLIX of 1951 enacts that a person who

would be disqualified to be chosen to either House under an

Act of Parliament would be disqualified to be chosen for the

State Assembly. Accordingly adopting the test that what

would be a disqualification for being a member of either

House of Parliament under Art. 102 would under s. 17 be a

disqualification for being chosen to the State Assembly, a

person who had entered into contracts for the supply of

goods not with the Central Government but with the State

Government (in the present case Himachal Pradesh) would not

be disqualified for being elected to either House of

Parliament and would in consequence not be disqualified for

being elected to the State Legislative Assembly of Part C

State.

Section 7(d) of the Representation of the People Act (XLIII

of 1951) was not in terms extended to elections in Part C

States and came in only with the qualifications mentioned in

s. 17 of Act XLIX of 1951.

Section 17 of Act XLIX of 1951 read in conjunction with s. 8

of the same Act cannot be construed as excluding the appli-

cation of s. 7 of Act XLIII of 1951 to elections hold under

the Act because in view of the general scheme underlying Act

XLIX of 1961 envisaged by ss. 6, 7, 8, 17 thereof it is not

possible to read into the omission of Part II of Act XLIII

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9

of 1951 under s. 8 of Act XLIX of 1951 an intention that the

disqualifications mentioned in s. 7 of Act XLIII of 1951

should not apply to elections held under the Act and

therefore the disqualifications laid down in s. 7 of Act

XLIII of 1951 must be held to be comprised within s. 17 of

Act XLIX of 1951.

Section 33(2) of the Representation of the People Act (XLIII

of 1951) conferred the privilege of proposing or seconding a

candidate on any person who was registered in the electoral

roll and s. 123(8) of the said Act could not be construed as

taking away that privilege.

*Against the decision in this case, a review application was

filed (Civil Miscellaneous Petition No. 641 Of 1954). The

decision on the said review application is reported

immediately after this case.

550

Held, that as an abstract proposition of law the mere

appointment of a Government servant as a polling agent is

not in itself and without more, an infringement of s.

123(8).

There is nothing in the Representation of the People Act,

1951 or Representation of the People (Conduct of Elections

and Election Petitions) 'Rules, 1951 barring the appointment

of a Government servant as a polling agent and such

appointment does not per se contravene s. 123(8).

There is nothing in the nature of the duties of a polling

agent which necessarily brings him within the prohibition

enacted in that section.

Raj Krushna Bose v. Binod Kanugo (1954 S.C.J. 286) followed.

JUDGMENT:

CIVIL APPELLATE JURISDICTION.: Civil Appeal No. 52 of 1954.

Appeal by Special Leave granted by this Court on the 25th

January, 1954, from Judgment and Order dated the 23rd May,

1953, of the Election Tribunal, Himachal Pradesh, Simla, in

Election Petition No. 14 of 1952.

Hardayal Hardy and R. C. Prasad for the appellant'.

Ved Vyas (S. K. Kapur and Naunit Lal, with him) for

respondent No. 1.

1954. May 25. The Judgment of the Court was delivered by

VENKATARAMA AYYAR J.-This is an appeal against the order of

the Election Tribunal, Himachal Pradesh, dismissing Election

Petition No. 14 of 1952. On 12th October, 1951, five

candidates (respondents 1 to 5 herein) were duly nominated

for election to the Legislative Assembly of the State of

Himachal Pradesh for the Rohru Constituency in Mahasu

District. The polling took place on 23rd November, 1951,

and on 30th November, 195 1, the first respondent was

declared elected, he having secured the largest number of

votes. The result was published in the Official Gazette on

20th December, 1951. On 14th February, 1952, one of the

unsuccessful candidates, Gyan Singh, (fifth respondent

herein) filed Election Petition No. 14 of 1952 challenging

the validity of the election of the first respondent. On

4th August, 1952, he applied to withdraw from the petition,

and that was permitted by an

551

order of the Tribunal dated 20th September, 1952. The

appellant, who is one of the electors in the Rohru

Constituency, then applied to be brought on record as the

petitioner, and that was ordered on 21st November, 1952.

The petition was then heard on the merits.

Though a number of charges were pressed -at the trial, only

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9

two of them are material for the purpose of the present

appeal: (1) that Sri Padam Dev was interested in contracts

for the supply of Ayurvedic medicines to the Government, and

was therefore disqualified for being chosen to the Assembly

under section 7(d) of Act No. XLIII of 1951; and (2) that he

had procured the assistance of Government servants for the

furtherance of his election prospects, and had thereby

contravened section 123(8) of that Act. The facts giving

rise to this contention were that one Daulataram had

subscribed in the nomination paper of Sri Padam Dev as

proposer and one Motiram as seconder, both of them being

Government servants employed in the post office, and,that

one Sital Singh, an extra-departmental agent, was appointed

by Sri Padam Dev as one of his polling agents at a booth at

Arhal.

By its judgment dated 25th September, 1953, the Election

Tribunal held firstly that section 7(d) of Act No. XLIII of

1951 had not been made applicable to elections in Part C

States, and that further there was no proof that on 12th

October, 1951, the date of nomination, there were contracts

subsisting between Sri Padam Dev and the Government. With

reference to the charge under section 123(8), the Tribunal

held by a majority that the section did not prohibit

Government servants from merely proposing or seconding

nomination papers, and that it had not been proved that

Daulataram and Motiram did anything beyond that. As regards

Sital Singh, while two of the members took the view that

section 123(8) did not prohibit the appointment of a

Government servant as polling agent, the third member was of

a different opinion. But all of them concurred in holding

that this point was not open to the petitioner, as it had

not been specifically raised in the petition. In the

result, the petition was dismissed. It is against this

judgment that the present appeal has been brought by special

leave,

552

The first question that arises for determination is whether

Sri Padam Dev was disqualified for being chosen to the

Legislative Assembly by reason of his having held at the

material dates contracts for the supply of Ayurvedic

medicines to the Himachal Pradesh State Government. The

answer to it must depend on the interpretation of the

relevant provisions of Act No. XLIX of 1951, which governs

elections to the Legislative Assemblies in Part C States.

Section 17 which deals with disqualifications runs as

follows:

"A person shall be disqualified for being chosen as, and for

being, a member of the Legislative Assembly of a State, if

he is for the time being disqualified for being chosen as,

and for being, a member of either House of Parliament under

any of the provisions of article 102."

Article 102 of the Constitution which becomes incorporated

in the section by reference is as follows:

102.(1) "A person shall be disqualified for being chosen as,

and for being, a member of either House of Parliament--

(a)if he holds any office of profit under the Government of

India or the Government of any State, other than an office

declared by Parliament by law not to disqualify its holder;

(b)if he is of unsound mind and stands so declared by a

competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily

acquired the citizenship of a foreign State, or is under any

acknowledgment of allegiance or adherence to a foreign

State; -

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9

(e) if he is so disqualified by or under any law made by

Parliament."

We are concerned in this appeal only with article 102(1)(e).

The contention of the appellant is that Act No. XLIII of

1951 being a law made by Parliament, the disqualifications

laid down under section 7 therein would fall within article

102(1)(e)' and would under section 17 of Act No. XLIX Of

1951 be attracted to elections held under that Act,

553

The respondent attempted several answers to this contention.

He firstly contended that as Act No. XLIII of 1951 did not

proprio vigore apply to elections in Part C States, he was

not a person disqualified by or under the terms of that law

as required by article 102(1)(e), and that therefore he was

not hit by section 17. Though this contention might, at

first thought, sound plausible, a closer examination of the

language of section 17 shows that this is not its true

import. The section does not enact that persons who are

disqualified under a law made by Parliament shall be

disqualified to be chosen under the Act. What it does enact

is that if a person would be disqualified to be chosen to

either House under an Act of Parliament, he would be dis-

qualified to be chosen for the State Assembly. In other

words, what would be a disqualification for a candidate

being chosen to either House would be a disqualification to

be chosen to the State Legislature. In this view, it is of

no consequence that the candidate was not disqualified under

section 7(d) by its own force.

It was next contended that whatever interpretation section

17 might be susceptible of if it had. stood alone, read in

conjunction with section 8 of Act No. XLIX of 1951 it must

be construed as excluding section 7(d) of Act No. XLIII of

1951. Section 8 of Act No. XLIX of 1951 enacts that Parts I

and III to XI of Act No. XLIII of 1951 and the rules made

thereunder apply to all elections under the Act, subject to

such modifications as the President might direct. Section 7

occurs in Part II of Act No. XLIII of 1951, and that is not

one of the parts extended under section 8. The argument is

that section 7 having been omitted by design from the

sections made applicable, the Legislature must be taken to

have intended that it should not apply to elections held

under the Act, and that section 17 should accordingly be so

construed as not to defeat that intention. Reliance was

placed on the well-known rules of construction that the

provisions of a statute should be read in such manner as to

give effect to all of them, and so as to avoid inconsistency

and repugnancy. Both the sections can be given their full

effect, it was argued, by holding that by reason of

71

554

the non-inclusion of Part II under section 8, section 7 of

Act No. XLIII of 1951 was inapplicable, and that, subject to

that, the other provisions enacted by Parliament would apply

under section 17. But this argument fails to take into

account the scheme underlying Act No. XLIX of 1951. The

framers of that Act wanted to enact a comprehensive code of

election law for Part C States. They had before them Act

No. XLIII of 1951, and they had to decide how much of it

they would adopt. Part I of Act No. XLIII of 1951 consists

only of short title and the interpretation section, and that

was adopted in Act No. XLIX of 195 1. Part II of Act No.

XLIII of 1951 deals with qualifications and

disqualifications for membership. That subject is dealt

with in sections 7 and 17 of Act No. XLIX of 1951. Section

7 sets out the qualifications and section 17, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9

disqualifications. It may also be noted that while

disqualification for being chosen to either House of

Parliament is laid down as a disqualification under section

17 the electoral roll for Parliament is to be taken under

section 6 as the electoral roll for election to the State

Assembly for the concerned area. These. provisions cover

the very ground covered by Part 11, and therefore there was

no need to extend any portion of it under section 8. Parts

III to XI deal with the actual election from the

commencement of the notification through all its stages and

matters connected therewith, and they have been adopted en

bloc in Act No. XLIX of 195 1. That being the general

scheme, it is not possible to read into the omission of Part

11 under section 8, an intention that the disqualifications

mentioned in section 7 should not apply to elections held

under the Act. Nor is there any inconsistency between

section 8 which passively omits Part II, and section 17

which positively enacts that what would be a disquali-

fication under article 102 would be a disqualification for

the purpose of this Act.

A good deal of argument was addressed to us based on the

substantial identity of the language of section 17 with that

of section 1 1 of Act No. XLIII of 195 1, which also occurs

in Part II, which contains section 7. The contention is that

if section 7 of Act No. XLIII of 1951 could be construed as

comprised in section 17 of Act

555

No. XLIX of 1951, it should also be held to have been

comprised in section 1 1 of Act No. XLIII of 195 1, in which

case, there was no need to enact two provisions in the same

Act, one overlapping the other. The simpler thing, it was

argued, would have been to. include section 1 1 in section 7

or vice versa. All this difficulty could be avoided,

according to the respondent, if the reference to article 102

in section 11 is interpreted as limited to article 102(1)

clauses (a) to (d) and not as including article 102(1) (e),

in which case the same construction should logically be

adopted for section 17. But this reasoning is inconclusive,

because the scope of section 7 and that of article 102 which

is incorporated by reference in section 11 are different.

It must further be noted that section 1 1 occurs in a

Chapter which deals exclusively with qualifications and

disqualifications for membership to electoral college in

Part C States. It is therefore not possible to draw any

inference from the non-inclusion of section 7 in section 11

or vice versa. On the. other hand, the construction

contended for by the respondent would give no meaning to the

words " disqualified for being chosen as a member of either

House of Parliament " in section 17. The result is that the

qualifications laid down in section 7 of Act No. XLIII of

1951 must be held to be comprised within section 17 of the

Act.

It was then contended that even on the footing that section

7 of Act No. XLIII of 1951 was comprised in section 17 of

Act No. XLIX of 195 1, the respondent was not disqualified

because under section 7(d) it would be a disqualification

only if the candidate had entered into contracts with the

appropriate Government, and under section 9(1) (a) "

appropriate Government " would mean, in relation to any

disqualification for being chosen to either House of

Parliament, II the. Central Government," and in relation to

any disqualification for being chosen to the Legislative

Assembly or Legislative Council, " the State Government." It

was argued that adopting the test that what would be a

disqualification for being a member of either House of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9

Parliament under article 102 would under section 17 be a

disqualification for being chosen to the State Assembly,

556

to operate as a disqualification the contract must be with

the Central Government, that in the present case, the

contracts, if any, were with the Himachal Pradesh State

Government, and that therefore the respondent was not a

person who would be disqualified for being elected to either

House, and would in consequence be not disqualified for

being elected to the State Legislative Assembly.

The appellant did not dispute the correctness of this

position. He contended that, as a matter of law, the

contracts of Sri Padam Dev were with the Central Government,

and that therefore he would be disqualified under the terms

of section 7(d) read with section 9. The basis for this

contention is article 239 of the Constitution, which enacts

that the States specified in Part C shall be administered by

the President through a Chief Commissioner or Lieutenant-

Governor to be appointed by him. Reference was also made to

article 77, which provides that all executive action of the

Government of India shall be expressed to be taken in the

name of the President. The argument is that the executive

action of the Central Government is vested in the President,

that the President is also the executive head of Part C

States, and that, therefore, the contracts entered into with

Part C States, are, in law, contracts entered into with the

Central Government. The fallacy of this reasoning is

obvious. The President who is the executive head of the

Part C States is not functioning as the executive head of

the Central Government, but as the head of the State under

powers specifically vested in him under article 239. The

authority conferred under article 239 to administer Part C

States has not the effect of converting those States into

the Central Government. Under article 239, the President

occupies in regard to Part C States, a position analogous to

that of a Governor in Part A States and of a Rajpramukh in

Part B States. Though the Part C States are centrally

administered under the provisions of article 239, they do

not cease to be States and become merged with the Central

Government. Articles 240 and 241 provide for Parliament

enacting laws for establishing legislative, executive and

judicial authorities for

557

those States, and Act No. XLIX of 1951 was itself enacted

under the power conferred under article 240. Section 38(2)-

of that Act provides that all executive action of the State

shall be expressed to be taken in the name of the Chief

Commissioner. It will be seen that while the executive

action of the Central Government is to be taken under

article 77 in the name of the President, that of Part C

States is to be taken under section 38(2), in the name of

the Chief Commissioner. Thus, there is no basis for the

contention that contracts with Part C States are to be

construed as contracts with the Central Government. Nor has

the appellant established as a fact that there were any

contracts between Sri Padam Dev and the Central Government.

The records only show that the dealings were with the Chief

Commissioner, who was in charge of the administration of the

State of Himachal Pradesh. The contention of the appellant

that the contracts of Sri Padam Dev were with the Central

Government cannot be supported either in law or on facts.

It may seem anomalous that while under sections 7(d) and

9(1) of Act No. XLIII of 1951 a contract with the State

would operate as a disqualification for being chosen to the

State Legislature and a contract with the Central Government

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9

would operate as a disqualification for being chosen to

either House of Parliament, the respondent should be held to

be not disqualified for election to the State Legislature

when he holds a contract with the State Government. But

that is- because section 7(d) was not in terms extended to

elections in Part C States, and came in only with the

qualifications mentioned in section 17.

In this view, the further question whether Sri Padam Dev

held contracts with the Government at the material dates is

only of academic interest. Counsel for the appellant argued

that the statements of law by the Election Tribunal forming

the foundation of its conclusion were in many respects

erroneous, and that its findings must therefore be rejected.

Thus, it is stated by the Tribunal that a contract could not

be held to be subsisting if goods had been delivered

thereunder, even though the price there for remained due and

payable. This is opposed to the view taken by this Court

since,

558

in Chatturbhuj Vithaldas v. Moreshwar Parashram Then again,

the Tribunal proceeds on the view that a candidate would be

disqualified only if there was a contract subsisting at the

date of the nomination. But it was observed in Chatturbhuj

Vithaldas v. Moreshwar Parashram(1) that the

disqualifications would apply during the whole of the period

commencing with the nomination and ending with the

declaration of the election. But these errors have not, in

fact, affected the correctness of the conclusions. With

reference to the Mandi contract the finding is that goods

had been supplied and price received in September, 1951. As

regards the Mahasu contract, the Government placed the order

with the respondent on 19th November, 195 1, and the goods

were supplied in December, 1951, and January, 1952. It must

be mentioned that the stand taken by the appellant himself

before the Tribunal was that the crucial date for

determining whether there was a subsisting contract was 12th

October, 1951, the date of nomination, and if the evidence

is not precise as to when the goods were supplied, it was a

situation for which he himself was responsible.

It was on the Sirmur contract that the appellant laid the

greatest emphasis. In this case, the order was placed by

the Government on 25th September, 1951, and the goods were

actually supplied on 1st December, 1951. The appellant

relied on certain, letters and a telegram which were sent on

behalf of the respondent on 31st October, 1951, 27th

November, 1951, and 30th November, 1951, as amounting to an

acceptance of the contract. But no such point was taken

before the Tribunal where it was admitted that the material

date was 12th October, 1951. As the question is one of

fact, the appellant cannot be permitted at this stage to

start a new and inconsistent. case, and contend that there

was an acceptance of the contract in October or November,

1951. It was further argued that even on the footing that

there was acceptance of the contract when the goods were

dispatched on 1st December, 1951, that was sufficient to

disqualify the respondent, as the terminus ad quo of the

period during which the

(1) A.I.R. 1954 S.C. 236.

559

disqualification was operative was not the date of dec-

laration which was 30th November, 1951, but the date of the

publication thereof in the Gazette, which was 20th December,

1951. It may be conceded in favour of the appellant that

the observation of this Court in Chatturbhuj Vithaldas v.

Moreshwar Parashram (1) that the material period starts with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9

the nomination and ends with the announcement was not a

decision on the' point. as it proceeded on an agreed

statement of counsel on both sides. But as the appellant

conceded before the Tribunal that the material date was the

date of nomination and the entire trial proceeded on that

basis, it is too late for him now to change his front and

contend that the material date is 20th December, 1951.

It remains to consider the contention that Sri Padam Dev had

procured the assistance of Government servants, and had

thereby brought himself within the mischief of section

123(8). The main objection before 'the Tribunal under this

heading related to the subscribing of the nomination paper

by Daulataram as proposer and Motiram as seconder. This

question has since been decided adversely to the appellant

in a recent decision of this Court reported in Rai Krushna

Bose v. Binod Kanungo (2), where it was held that section

33(2) conferred the privilege of proposing or seconding a

candidate on any person who was registered in the electoral

roll, and that section 123 (8) could not be construed as

taking away that privilege. This objection must, therefore,

be overruled.

Then there is the question whether the appointment of Sital

Singh as polling agent contravened section 123(8). The

majority of the Tribunal was of the opinion that the

appointment of a Government servant as polling agent was not

by itself objectionable, but the third member thought

otherwise. They, however, agreed in deciding the point

against the appellant on the ground that it had not been

expressly raised in the petition. It was argued for the

appellant that as it was admitted at the trial that Sital

Singh was appointed polling agent, the point was open to him

as it was a

(1) A.I.R. 1954 S.C. 236.

(2) 1954 S.C.J. 286,

560

pure question of law. As the facts are admitted, and the

question itself has been considered by the Tribunal, and as

the point is one of considerable practical importance, we

have heard arguments on it.

Section 46 of Act No. XLIII of 1951 empowers a candidate

to"appoint in the prescribed manner such number of agents

and relief agents as may be prescribed to act as polling

agents of such candidate at each polling station". Rule 12

of the Representation of the People (Con duct of Elections

and Election Petitions) Rules, 1951, prescribes the

formalities to be observed in the appointment of such

agents, and Form 6 framed thereunder provides for the

polling agent signing a declaration that he would do nothing

forbidden by section 128. That -section enjoins that every

agent shall maintain and aid in maintaining the secrecy of

the voting. Thus, there is nothing in the Act or in the

rules barring the appointment of a Government servant as a

polling agent. And on the reasoning adopted in Raj Krushna

Bose v. Binod Kanungo (1) with reference to section 33 (2),

the conclusion must follow that such appointment does not

per se contravene section 123(8). Nor is there anything in

the nature of the duties of a polling agent, which

necessarily brings him within the prohibition enacted in

that section. The duty of a polling agent is merely to

identify the voter, and that could not by itself and without

more, be said to further the election prospects of the

candidate. So long as the polling agent confines himself to

his work as such agent of merely identifying the voters, it

cannot be said that section 123(8) has, in any manner, been

infringed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9

It is argued for the appellant that leaving aside the world

of theories and entering into the realm of practical

politics, the appointment of a Government servant as polling

agent by one of the candidates must result in the dice being

loaded heavily against the other candidate, and that

situations might be conceived in which the presence of a

Government servant of rank and importance as polling agent

of one of the candidates might prove to be a source of

unfair election practices. But if that is established, and

if it is made out that the

(1) 1954 S.C.J. 286.

561

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). But the question which we have got to decide is

whether as an abstract proposition of law the mere

appointment of a Government servant as a polling agent is in

itself and without more an infringement of section 123(8).

Our answer is in the negative. In the present case, the

finding is that beyond acting as polling agent Sital Singh

did nothing. Nor is there any finding that the respondent

in any manner availed himself of his presence at the polling

booth to further his own election prospects. Thus there are

no grounds for holding that section 123(8) had been

contravened.

In the result, the appeal fails and is dismissed with costs.

Appeal dismissed.