Case: Satya Dev Bushahri* Vs. Padam Dev And Others

Venkatarama Ayyar, J.1. This is an appeal against the order of the Election Tribunal, Himachal Pradesh, dismissing Election Petition No. 14 of 1952. On 12-10-1951, 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 23-11-1951, and on 30-11-1951 the first respondent was declared elected, he having secured the largest number of votes. The result was published in the official Gazette on 20-12-1951.On 14-2-1951 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 4-8-1952 he applied to withdraw from the petition, and that was permitted by an order of the Tribunal dated 20-9-1952. 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 21-11-1952. The petition was then heard on the merits.3. Though a number of charges were pressed at the trial, only 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 S. 7 (d) of Act No. 43 of 1951*; and (2) that he had procured the assistance of Government servants for the furtherance of his election prospects, and had thereby contravened S. 123(8) of the Act. The facts giving rise to this contention were that one Daulatram 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, and extra-departmental agent, was appointed by Sri Padam Dev as one of his polling agents at a booth at Arhal.4. By its judgment dated 25-9-1953 the Election Tribunal held firstly that S. 7(d) of Act No. 43 of 1951 had not been made applicable to elections in Part C States, and that further there was no proof that on 12-10-1951, the date of nomination there were contracts subsisting between Sri Padam Dev and the Government.With reference to the charge under S. 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 Daulatram and Motiram did anything beyond that. As regards Sital Singh, while two of the members took the view that S. 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.5. 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. 49 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 Art. 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 acknowledgement of allegiance or adherence to a foreign State;(e) if he is so disqualified by or under any law made by Parliament."We are concerned in this appeal only with Art. 102 (1)(e). The contention of the appellant is that Act No. 43 of 1951 being a law made by Parliament, the disqualifications laid down under S. 7 therein would fall within Art. 102 (1) (e), and would under S. 17 of Act No. 49 of 1951 be attracted to elections held under that Act.6. The respondent attempted several answers to this contention. He firstly contended that as Act No. 43 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 Art. 102 (1) (e), and that, therefore, he was not hit by S.17. Though this contention might, at first thought, sound plausible, a closer examination of the language of S. 17 shows that this is not its true import.The section does not enact that person who are disqualified under a law made by Parliament shall be disqualified to be chosen under the Act. What it does enact is that is a person would be disqualified to be chosen to either house under an Act of Parliament, he would be disqualified 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 S. 7(d) by its own force.7. It was next contended that whatever interpretation S. 17 might be susceptible of if it had stood alone, read in conjunction with S. 8 of Act No. 49 of 1951 it must be construed as excluding S. 7 (d) of Act No. 43 of 1951. Section 8 of Act No. 49 of 1951 enacts that Parts 1 and III to XI of Act No. 43 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. 43 of 1951, and that is not one of the Parts extended under S. 8. The argument is that S. 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 S. 17 should accordingly be so constructed 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 the non-inclusion of Part II under S. 8, S. 7 of Act No. 43 of 1951 was inapplicable, and that subject to that, the other provisions enacted by Parliament would apply under S. 17. But this argument fails to take into account the scheme underlying Act No. 49 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. 43 of 1951, and they had to decide how much of it they would adopt. Part I of Act No. 43 of 1951 consists only of short title and the interpretation section, and that was adopted in Act No. 49 of 1951. Part II of Act No. 43 of 1951 deals with qualifications and disqualifications for membership. That subject is dealt with in Ss. 7 and 17 of Act No. 49 of 1951. Section 7 sets out the qualifications and S. 17, the disqualifications. It may also be noted that while disqualification for being chosen to either House of Parliament is laid down as a disqualification under S. 17, the electoral roll for Parliament is to be taken under S. 6 as the electoral roll for election to the State Assembly for the concerned area. These provisions cover the very ground covered by Part II, and therefore there was no need to extend any portion of it under S. 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 block in Act No. 49 of 1951. That being the general scheme, it is not possible to read into the omission of Part II under S. 8, an intention that the disqualifications mentioned in S. 7 should not apply to elections held under the Act. Nor is there any inconsistency between S. 8 which passively omits Part II, and S. 17 which positively enacts that what would be a disqualification under Art.102 would be a disqualification for the purpose of this Act.8. A good deal of argument was addressed to us based on the substantial identity of the language of S. 17 with that of S. 11 of Act No. 43 of 1951, which also occurs in Part II, which contains S. 7. The contension is that if S. 7 of Act No. 43 of 1951 could be construed as comprised in S. 17 of Act No. 49 of 1951, it should also be held to have been comprised in S. 11 of Act No. 43 of 1951, 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 S. 11 in S. 7 or vice versa. All this difficulty could be avoided, accordingly to the respondent, if the reference to Art. 102 in S. 11 is interpreted as limited to Art. 102(1), cls. (a) to (d) and not as including Art. 102(1)(e), in which case the same construction should logically be adopted for S. 17. But this reasoning is inconclusive, because the scope of S. 7 and that of Art. 102 which is incorporated by reference in S. 11 are different. It must further be noted that S. 11 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 S. 7 in S. 11 or vice versa. On the other hand, the constructions 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 S.17. The result is that the qualifications laid down in S. 7 of Act No. 43 of 1951 must be held to be comprised within S.17 of the Act.9. It was then contended that even on the footing that S. 7 of Act No. 43 of 1951, was comprised in S. 17 of Act No. 49 of 1951, the respondent was not disqualified because under S. 7(d) it would be a disqualification only if the candidate had entered into contracts with the appropriate Government, and under S. 9(1)(a) "appropriate Government, would mean, in relation to any disqualification for being chosen to either House of Parliament, "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 Parliament under Art. 102 would under S. 17 be a disqualification for being chosen to the State Assembly, to operate as a disqualification the contract must be with the Central Government, that in the present case, the contracts, if any, where 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.10. 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 S. 7(d) read with S.9. The basis for this contention is Art. 239 of the Constitution, which enacts that the States specified in Part C shall be administered by the President through a Chief Commissioner of Lieutenant-Governor to be appointed by him. Reference was also made to Art. 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 Art.239. The authority conferred under Art. 239 to administer Part C States has not the effect of converting those States into the Central Government. Under Art. 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 certainly administered under the provisions of Art. 239, they do not cease to be States and become merged with the Central Government.11. Article 240 and 241 provide for Parliament enacting laws for establishing legislative, executive and judicial authorities for those States, and Act No. 49 of 1951 was itself enacted under the power conferred under Art.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 Art. 77 in the name of the President, that of Part C States is to be taken under S. 38 (2), in the name of the Chief Commissioner.12.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 Ss. 7(d) and 9(1) of Act No. 43 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 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 S. 7 (d) was not in terms extended to elections in Part C States, and came in only with the qualifications mentioned in S. 17.13. 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 conclusions 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 therefor remainded due and payable. This is opposed to the view taken by this Court since, in - Chatturbhuj Vithaldas v. Moreshwar Parashram, AIR 1954 SC 236 (A). 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 (A) 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 19-11-1951, 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 12-10-1951, 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.14. It was on the Sirmur Contract that the appellant laid the greatest empahsis. In this case, the order was placed by the Government on 25-9-1951, and the goods were actually supplied on 1-12-1951. The appellant relied on certain letters and a telegram which were sent on behalf on the respondent on 3-10-1951, 27-11-1951 and 30-11-1951 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 12-10-1951. 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 despatched on 1-12-1951, that was sufficient to disqualify the respondent, as the terminus ad quo of the period during which the disqualification was operative was not the date of declaration which was 30-11-1951 but the date of the publication thereof in the Gazette, which was 20-11-1951. It may be conceded in favour of the appellant that the observation of this Court in - Chatturbhuj Vithaldas v. Moreshwar Parashram (A) that the material period starts with 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 contended 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 contended that the material date is 20-12-1951.15. It remains to consider the contention that Sri Padam Dev had procured the assistance of Government servant, and had thereby brought himself within the mischief of S. 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 - Raj Krushna Bose v. Binod Kanungo, AIR 1954 SC 202 (B), where it was held that S. 33(2) conferred the privilege of proposing or seconding a candidate on any person who was registered in the electoral roll, and that S. 123(8) could not be construed as taking away that privilage. This objection must, therefore, be overruled.16. Then there is the question whether the appointment of Sital Singh as polling agent contravened S. 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 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.17. Section 46 of Act No. 43 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 (Conduct of Elections and Election Petitions) Rules, 1951 prescribed 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 S. 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 - AIR 1954 SC 202 (B) with reference to S. 33(2),the conclusion must follow that such appointment does not per se contravene S. 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 S. 123(8) has, in any manner, been infringed.18. 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 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 S. 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 S. 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 S. 123 (8) had been contravened.

Decision reasoning: 0[ds]10. 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 S. 7(d) read with S.9. The basis for this contention is Art. 239 of the Constitution, which enacts that the States specified in Part C shall be administered by the President through a Chief Commissioner ofto be appointed by him. Reference was also made to Art. 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 Art.239. The authority conferred under Art. 239 to administer Part C States has not the effect of converting those States into the Central Government. Under Art. 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 certainly administered under the provisions of Art. 239, they do not cease to be States and become merged with the Central Government.11. Article 240 and 241 provide for Parliament enacting laws for establishing legislative, executive and judicial authorities for those States, and Act No. 49 of 1951 was itself enacted under the power conferred under Art.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 Art. 77 in the name of the President, that of Part C States is to be taken under S. 38 (2), in the name of the Chief Commissioner.12.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 Ss. 7(d) and 9(1) of Act No. 43 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 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 S. 7 (d) was not in terms extended to elections in Part C States, and came in only with the qualifications mentioned in S.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 S. 123 (8) had been contravened.