Case ID: 274

Judgment:
cellaneous 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 (section K. Kapoor and Naunit Lal	 with him) for the respondent. 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 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 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 con tention	 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 . 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 	 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 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 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 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 	 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 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 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 	 a contract with the Chief Commissioner in a 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 furtfier 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 thereon	 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.

Summary:
Held	 (modifying the view of law taken in Civil Appeal No. 52 of 1954) that in view of section 3(8) of the 	 a contract with the Chief Commissioner in a 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.