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PETITIONER: RAJ KRUSHNA BOSE

       Vs.

RESPONDENT: BINOD KANUNGO AND OTHERS.

DATE OF JUDGMENT: 04/02/1954

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. BOSE, VIVIAN HASAN, GHULAM

CITATION:  1954 AIR  202            1954 SCR  913  CITATOR INFO :  F          1954 SC 587  (12)  F          1955 SC 425  (12)  R          1976 SC1207  (565)

ACT:  Constitution  of India, arts. 136 and 226-Representation  of  the  People  Act, 1951 (Act XLIII of 1951), ss.  33(2),  99,  105, 123 (8)-Order of the tribunal under s. 105 declared  as  final and conclusive-Whether affects discretionary powers of  Supreme  Court  and  High Courts under arts.  136  and  226-  Elected  candidate  nominated  or  seconded  by   Government  servant-Legal  effect thereof Orders of  tribunal,  contents  of.

HEADNOTE: (1)  The  unfettered discretionary powers conferred  on  the Supreme  Court and the High Courts by arts. 136 and  226  of the  Constitution  respectively  cannot  be  taken  away  or whittled down by the legislature and therefore s. 105 of the Representation of the People Act, 1951, which provides  that every order of the tribunal under the Act shall be final and conclusive did not affect such powers. (2)  In   view   of  the  provisions  of  s.   16   of   the Representation  of the People Act, 1950, and the  provisions of  ss.  33  (2) and 123 (8) of the  Representation  of  the People  Act,  1951,  an  election  to  a  State  Legislative Assembly  is  not  invalidated when the  elected  member  is either nominated or seconded or both by a Government servant or servants. (3)  The  Supreme Court recorded its disapproval of the  way in which the Election Tribunal shirked its duty and tried to take  a short cut in deciding only two of the twelve  issues framed and thus acted against the provisions of s. 99 of the Act.

JUDGMENT: CIVIL APPELLANTE JURISDICTION: Civil Appeal No. 239 of 1953.

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Appeal  by special leave from the Order and  Judgment  dated the 5th September, 1953, of the Election Tribunal,  Cuttack, in Election Case No. 5 of 1952. S.   B. Jathar for the appellant. S.   P. Sinha (R.  Patnaik, with him) for the respondent. 1954.   February 4. The Judgment of Mahajan C.J.  Mukherjea, Das  and  Ghulam Hasan JJ. was delivered’ by Das  J.  Vivian Bose J. delivered a separate judgment. DAS J.-The question here is whether an election to a State Legislative Assembly is invalidated when the 118 914 member’s  nomination  was either proposed  or  seconded,  or both, by a Government servant or servants. The appellant was a minister in the State of Orissa.  He was nominated as a candidate for the Orissa Legislative Assembly and  was  later declared to have been elected.  One  of  his rivals was the 1st respondent who filed an election petition challenging the election on a number of grounds, among them, the following.  The appellant had filed about two dozen nomination  papers. In five of them the proposer was a Government servant and in four the seconder.  The 1st respondent stated that this  was the  first  step  in  a scheme  to  get  the  assistance  of Government  officers  in  furtherance  of  the   appellant’s election  and to "use and utilse" them "for the purposes  of the  election." There were also other allegations  Which  we need not consider here. The  appellant  made  counter allegations  against  the  1st respondent, whom he had defeated, but they do not concern us either. The Election Tribunal framed twelve issues and examined  101 witnesses,  but when it came to make its order it  proceeded to  decide  only two issues instead of  deciding  the  whole case.  It held that as the proposers and seconders  referred to   above   were  admittedly   Government   servants   that constituted a major corrupt practice and so invalidated  the election under section 123 (8) of the Representation of  the People Act, 1951 (No.  XLIII of 1951).  The other of the two decided issues does not concern this appeal. The appellant thereupon petitioned the High Court for a writ of  certiorari Under article 226 of the  Constitution.   The High  Court refused to interfere.  The learned  Judges  held that  there was no want of jurisdiction in the tribunal  and that  the  tribunal’s  view of the law was  a  possible  and reasonable  one , accordingly, as the High Court was  not  a court of appeal from the tribunal, they were not called upon to decide the question as a court of appeal. The  appellant was granted special leave to appeal  by  this court against the order Of the Election Tribunal. 915 A question of ’great public importance affecting  Government servants  is  involved and we deem it right to  examine  the question under our special jurisdiction under article 136. The  only  sections  we  are called  upon  to  consider  are sections 33 (2) and 123 (8).  The former provides that- "Any  person whose name is registered in the electoral  roll of   the  constituency  and  who  is  not  subject  to   any disqualification   mentioned   in   section   16   of    the Representation  of the People Act, 1950 (XLIII of 1950)  may subscribe as proposer or seconder as man nomination  papers. as there are vacancies to be filled... According to the latter- "The obtaining or procuring or abetting...... by a candidate or his agent or, by any other person with the ’connivance of

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a candidate or his agent, any assistance for the furtherance of the prospects of the candidate’s election from any person serving  under the Government of India or the Government  of any  State  other than the giving of vote  by  such  person" shall  be  deemed  to be a major corrupt  practice  for  the purposes  of  the  Act.  A corrupt  practice  of  this  kind entails disqualification for membership (section 140). Section  33  (2)  is general and confers  the  privilege  of proposing  or  seconding a candidate for election  on  every person  who is registered in the electoral roll provided  be is  not  disqualified under section 16 of the Act  of  1950. That  section  excludes  three classes of  persons  but  not Government  servants, unless of course they happen  to  fall within  those classes.  Therefore, so far as section 33  (2) is  concerned, a Government servant is entitled to  nominate or second a candidate for election unless he happens to fall in  one of the three excluded categories.  The  question  is whether section 123 (8) takes away from Government  servants that which section 33 (2) gives to them.  We do not think it does. Viewing  the question as a plain matter of construetion,  we find that when section 33(2) was framed those 916 who  passed  it had in mind the  desirability  of  excluding certain classes of persons from its scope and they chose  to limit those classes to three.  Therefore, in the absence  of express  provision to the contrary elsewhere, or  unless  it follows  by  necessary  implication,  the  section  must  be construed  to  mean that those not. expressly  excluded  are intended to be included.  As Government servants are not  in the  excluded  categories  it follows that so  far  as  this section   is  concerned  they  are  not  disqualified   from proposing and seconding a candidate’s nomination. Now,  does section 123 (8) contain express provision to  the contrary  or  can such provision be  inferred  by  necessary implication?  It is usual, when one section of an Act  takes away what another confers, to use a non obstante clause  and say  that "notwithstanding anything contained in section  so and  so,  this  or that will  happen",  otherwise,  if  both sections  are  clear, there is a head-on clash.  It  is  the duty of courts to avoid that and, whenever it is possible to do  so, to construe provisions which appear to  conflict  so that they harmonise. What  exactly  does  section  123 (8)  forbid?   It  is  the obtaining  or  procuring etc., of  "any  assistance......... other than the giving of vote by such person." Therefore, it is  permissible  for  a  candidate  to  canvass   Government servants for their votes and if a Government servant chooses to reveal his hand it would be permissible for the candidate to  disclose  the  fact and use it  in  furtherance  of  his election,  for the law imposes no secrecy on the  intentions of those who, of their own free will, choose to say how they intend  to vote.  They cannot be compelled to  disclose  the fact  and  any improper attempt to obtain  such  information would  be  a  corrupt practice, but equally,  they  are  not completed to keep the fact secret if they do not wish to  do so;  nor  is the candidate.  If therefore  the  law  permits this, we find it difficult to see how in the same breath  it can be said to have taken away the right expressly conferred by  section  33(2).   The  policy of  the  law  is  to  keep Government servants aloof from politics and also to  protect them from being imposed on, by those with 917 influence  or  in positions of authority and power,  and  to prevent  the  machinery  of Government from  being  used  in

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furtherance  of a candidate’s return.  But at the same  time it is not the policy of the law to disenfranchise them or to denude them altogether of their rights as ordinary  citizens of  the  land.   The balance between the  two  has,  in  our opinion, been struck in the manner indicated above. But though it is permissible for a candidate to go that far, he  cannot go further and if the procurement  of  Government servants  to  propose and second a nomination is part  of  a plan to procure their assistance for the furtherance of  the candidate’s  prospects  in  other ways than  by  vote,  then section 123(8) is attracted, for in that case, the plan, and its fulfillment, must be viewed as a connected whole and the acts  of  proposing  or  seconding  which  are  innocent  in themselves cannot be separated from the rest. Our  conclusion  on  the  preliminary  issue  may  also   be supported  on  another ground.  The major  corrupt  practice referred  to  in  clause  (8) of  section  123  consists  in obtaining  or procuring or abetting or attempt to obtain  or procure by a candidate or his agent etc., any assistance for the furtherance of the prospects of the candidate’s election from any person serving under the Government of India or the Government  of  any State other than the giving of  vote  by such  person.  In order, therefore, to bring a  case  within the  mischief of that clause the assistance must be for  the furtherance  of the prospects of the  candidate’s  election. Section 79(b) defines a candidate as meaning " a person who has been or claims to have been nominated  as a  candidate at any election, and any such person  shall  be deemed to have been a candidate as from the time when,  with the election in prospect, he began to hold himself out as  a prospective candidate." Unless,  therefore, a case falls within the latter  half  of the definition a person becomes a candidate under the  first part of the definition only  when he has been duly nominated as a candidate and the furtherance of 918 the prospects of a candidate’s election must, therefore,  in such  a  case  commence from  after  that  stage.   Although evidence  was  adduced  on both sides,  there  has  been  no finding  so  far on questions of fact which may or  may  not bring the case within the second part of the definition.  In the absence of such a finding the case must be regarded, for the  purpose  of the preliminary issue, as governed  by  the first  part of the definition and as such the proposing  and seconding  by  a Government servant cannot  be  regarded  as "assistance  for  the furtherance of the  prospects  of  the candidate’s election." In this view of the matter also,  the judgment of the Election Tribunal cannot be sustained. We set aside the order of the tribunal and remit the case to the   Election   Commission  with  directions   to   it   to reconstitute  the  tribunal  which tried this  case  and  to direct  the tribunal to give its findings on all the  issues raised and to make a fresh order. Our  power to make such an order was not questioned  but  it was said that when the legislature states that the orders of a  tribunal  under  an  Act  like  the  one  here  shall  be conclusive  and  final  (section 105), then  we  should  not interfere.   It  is  sufficient  to  say  that  the   powers conferred  on us by article 136 of the Constitution  and  on the  High Courts under article 226 cannot be taken  away  or whittled  down by the legislature.  So long as these  powers remain,  our  discretion  and that of  the  High  Courts  is unfettered. We  wish to record our disapproval of the way in which  this tribunal shirked its work and tried to take a short cut.  It

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is  essential that these tribunals should do their  work  in full.  They are ad hoc bodies to which remands cannot easily be  made  as in ordinary courts of law.   Their  duty  under section 99 is, " where any charge is made in the petition of any corrupt or illegal practice having been committed at the election" to record "  a finding whether any corrupt or illegal practice has  or has not been proved to have been committed...and  the,nature of that corrupt or illegal practice." 919 Also, "  to give the names of all persons, if any, who  have  been proved  at the trial to have been guilty of any  corrupt  or illegal practice and the nature of that practice." Their duty does not end by declaring an election to be  void or not because section 99 provides that in addition to that "   at  the  time of making an  order  under  section  98the tribunal shall also make an order etc........" A  number  of allegations were made in  the  petition  about corruption  and  illegal  practices,  undue  influence   and bribery.   It  was  the duty of the  tribunal  not  only  to enquire  into  those  allegations, as it did,  but  also  to complete  the  enquiry  by recording  findings  about  those allegations and either condemn or clear the candidate of the charges made. We make no order about costs. Bose  J.-I  agree on all but one point.  I have  some  doubt about the reason given by my learned brother which is  based on the definition’ of "candidate" in the Act.  I prefer  not to express any opinion that one point. Case remanded. Agent for the appellant: Ratnaparkhi Anant Govind. Agent for respondent No. 1  A. D. Mathur.