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

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 (1 = appeal accepted, 0 = rejected): 0

Explanation:
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.