18 October 1954
Supreme Court







DATE OF JUDGMENT: 18/10/1954


CITATION:  1955 AIR    5            1955 SCR  (1) 561  CITATOR INFO :  F          1956 SC 315  (2)  F          1956 SC 335  (1)

ACT: Representation  of the People Act (XLIII of 1961), ss.  7(8) and  9--General Clauses Act (X of 1897), s.  3(8)-Government of  Part  C  States Act (XLIX  of  1951),  s.  17-Government contract  with the Part C State Government whether  contract with the Central Government--And thus a disqualification for election to Legislative Assembly of State under s. 17 of Act XLIX of 1951 read with s. 7(d) of Act XLIII of 1951.

HEADNOTE:    Held,  (modifying the view of law taken in  Civil  Appeal No. 52 of 1954) that in view of section 3(8) of the  General Clauses Act, 1897, a contract with the Chief Commissioner in a  Part  C  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.

JUDGMENT: CIVIL APPEAL JURISDICTION: Civil Miscellaneous 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 (S.  K. Kapoor and Naunit Lal, with him) for  the respondent. 1954.  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 Part C 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 Part C 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  General Clauses Act.  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 General Clauses Act, 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  General Clauses  Act 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 Part  C  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  Part  C  -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 General Clauses Act, 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 Part C 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  Part  C  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 General Clauses Act, a contract with the Chief Commissioner in a Part C 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.