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

1. This is an appeal against the order of the Election Tribunal, Himachal Pradesh, dismissing Election Petition No. 14 of 1952. Onfive 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 on951 the first respondent was declared elected, he having secured the largest number of votes. The result was published in the official Gazette on1 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. Onhe applied to withdraw from the petition, and that was permitted by an order of the Tribunal datedThe 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 onThe 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, andagent, was appointed by Sri Padam Dev as one of his polling agents at a booth at Arhal.4. By its judgment datedthe 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 onthe 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.

Reasoning: 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.