25 May 1954
Supreme Court


Case number: Appeal (civil) 52 of 1954






DATE OF JUDGMENT: 25/05/1954


CITATION:  1954 AIR  587            1955 SCR  549  CITATOR INFO :  F          1956 SC 315  (2)  F          1956 SC 335  (1)  RF         1962 SC 145  (8,9)  RF         1975 SC2299  (412)  D          1985 SC 357  (15)

ACT: Government of Part C States Act (XLIX of 1951), ss. 8 and 17 --  Whether  exclude  the  application of  s.  7(d)  of  the Representation  of  the  People Act 1951  to  the  elections relating to Part C States -Representation of the People  Act (XLIII of 1951), ss. 33(2), 123 (8)-Proposing or seconding a candidate by a person under s. 33(2) -Whether prohibited  by s. 123(8)-Mere Appointment of Government servant as  polling agent--Whether infringes s. 123(8).

HEADNOTE: Section  17  of Act XLIX of 1951 enacts that  a  person  who would be disqualified to be chosen to either House under  an Act of Parliament would be disqualified to be chosen for the State  Assembly.   Accordingly adopting the test  that  what would  be  a disqualification for being a member  of  either House  of Parliament under Art. 102 would under s. 17  be  a disqualification  for being chosen to the State Assembly,  a person  who  had entered into contracts for  the  supply  of goods  not  with the Central Government but with  the  State Government (in the present case Himachal Pradesh) would  not be  disqualified  for  being  elected  to  either  House  of Parliament and would in consequence not be disqualified  for being  elected to the State Legislative Assembly of  Part  C State. Section 7(d) of the Representation of the People Act  (XLIII of  1951) was not in terms extended to elections in  Part  C States and came in only with the qualifications mentioned in s. 17 of Act XLIX of 1951. Section 17 of Act XLIX of 1951 read in conjunction with s. 8 of the same Act cannot be construed as excluding the  appli- cation of s. 7 of Act XLIII of 1951 to elections hold  under the Act because in view of the general scheme underlying Act XLIX of 1961 envisaged by ss. 6, 7, 8, 17 thereof it is  not possible  to read into the omission of Part II of Act  XLIII



of 1951 under s. 8 of Act XLIX of 1951 an intention that the disqualifications  mentioned  in s. 7 of Act XLIII  of  1951 should  not  apply  to  elections held  under  the  Act  and therefore the disqualifications laid down in s.   7  of  Act XLIII of 1951 must be held to be comprised within s.   17 of Act XLIX of 1951. Section 33(2) of the Representation of the People Act (XLIII of 1951) conferred the privilege of proposing or seconding a candidate on any person who was registered in the  electoral roll and s. 123(8) of the said Act could not be construed as taking away that privilege. *Against the decision in this case, a review application was filed  (Civil Miscellaneous Petition No. 641 Of 1954).   The decision   on  the  said  review  application  is   reported immediately after this case. 550 Held,  that  as  an abstract proposition  of  law  the  mere appointment  of a Government servant as a polling  agent  is not  in  itself  and without more,  an  infringement  of  s. 123(8). There  is nothing in the Representation of the  People  Act, 1951  or Representation of the People (Conduct of  Elections and Election Petitions) ’Rules, 1951 barring the appointment of  a  Government  servant  as  a  polling  agent  and  such appointment does not per se contravene s. 123(8). There  is nothing in the nature of the duties of  a  polling agent  which necessarily brings him within  the  prohibition enacted in that section. Raj Krushna Bose v. Binod Kanugo (1954 S.C.J. 286) followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION.: Civil Appeal No. 52 of 1954. Appeal  by Special Leave granted by this Court on  the  25th January,  1954, from Judgment and Order dated the 23rd  May, 1953, of the Election Tribunal, Himachal Pradesh, Simla,  in Election Petition No. 14 of 1952. Hardayal Hardy and R. C. Prasad for the appellant’.  Ved  Vyas  (S.   K. Kapur and Naunit  Lal,  with  him)  for respondent No. 1. 1954.  May 25.  The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-This is an appeal against the order  of the Election Tribunal, Himachal Pradesh, dismissing Election Petition  No.  14  of 1952.  On  12th  October,  1951,  five 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 on 23rd  November,  1951, and  on  30th  November, 195 1,  the  first  respondent  was declared  elected, he having secured the largest  number  of votes.  The result was published in the Official Gazette  on 20th  December,  1951.  On 14th February, 1952, 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.   On 4th August, 1952, he applied to withdraw from the  petition, and that was permitted by an 551 order  of  the  Tribunal dated 20th  September,  1952.   The 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 on 21st  November,  1952. The petition was then heard on the merits. 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 section 7(d) of Act No. XLIII of 1951; and (2) that he had  procured the assistance of Government servants for  the furtherance  of  his  election prospects,  and  had  thereby contravened  section 123(8) of that Act.  The  facts  giving rise  to  this  contention  were  that  one  Daulataram  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, an extra-departmental agent, was  appointed by Sri Padam Dev as one of his polling agents at a booth  at Arhal. By  its  judgment dated 25th September, 1953,  the  Election Tribunal held firstly that section 7(d) of Act No. XLIII  of 1951  had  not been made applicable to elections in  Part  C States,  and  that further there was no proof that  on  12th October, 1951, the date of nomination, there were  contracts subsisting  between Sri Padam Dev and the Government.   With reference  to the charge under section 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 Daulataram and Motiram did anything beyond that.  As regards Sital  Singh,  while two of the members took the  view  that section  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, 552 The first question that arises for determination is  whether Sri  Padam  Dev  was disqualified for being  chosen  to  the Legislative  Assembly  by reason of his having held  at  the material  dates  contracts  for  the  supply  of   Ayurvedic medicines  to  the Himachal Pradesh State  Government.   The answer  to  it  must depend on  the  interpretation  of  the relevant  provisions of Act No. XLIX of 1951, which  governs elections  to the Legislative Assemblies in Part  C  States. Section  17  which  deals  with  disqualifications  runs  as follows: "A person shall be disqualified for being chosen as, and for being,  a member of the Legislative Assembly of a State,  if he  is for the time being disqualified for being chosen  as, and for being, a member of either House of Parliament  under any of the provisions of article 102." Article  102 of the Constitution which becomes  incorporated in the section by reference is as follows: 102.(1) "A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-- (a)if he holds any office of profit under the Government  of India  or the Government of any State, other than an  office declared by Parliament by law not to disqualify its holder; (b)if  he  is of unsound mind and stands so  declared  by  a competent court; (c)  if he is an undischarged insolvent; (d)  if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment  of  allegiance  or adherence  to  a  foreign State; -



(e)  if  he is so disqualified by or under any law  made  by Parliament." We are concerned in this appeal only with article 102(1)(e). The  contention  of the appellant is that Act No.  XLIII  of 1951  being a law made by Parliament, the  disqualifications laid down under section 7 therein would fall within  article 102(1)(e)’  and  would under section 17 of Act No.  XLIX  Of 1951 be attracted to elections held under that Act, 553 The respondent attempted several answers to this contention. He  firstly contended that as Act No. XLIII of 1951 did  not proprio  vigore apply to elections in Part C States, he  was not a person disqualified by or under the terms of that  law as required by article 102(1)(e), and that therefore he  was not  hit  by section 17.  Though this contention  might,  at first thought, sound plausible, a closer examination of  the language  of  section  17 shows that this is  not  its  true import.   The  section does not enact that persons  who  are disqualified  under  a  law  made  by  Parliament  shall  be disqualified to be chosen under the Act.  What it does enact is  that if a person would be disqualified to be  chosen  to either  House under an Act of Parliament, he would  be  dis- qualified  to  be chosen for the State Assembly.   In  other words,  what  would be a disqualification  for  a  candidate being chosen to either House would be a disqualification  to be chosen to the State Legislature.  In this view, it is  of no consequence that the candidate was not disqualified under section 7(d) by its own force. It  was next contended that whatever interpretation  section 17  might be susceptible of if it had. stood alone, read  in conjunction  with section 8 of Act No. XLIX of 1951 it  must be  construed as excluding section 7(d) of Act No. XLIII  of 1951.  Section 8 of Act No. XLIX of 1951 enacts that Parts I and  III to XI of Act No. XLIII of 1951 and the  rules  made thereunder apply to all elections under the Act, subject  to such modifications as the President might direct.  Section 7 occurs in Part II of Act No. XLIII of 1951, and that is  not one  of the parts extended under section 8. The argument  is that  section  7  having been omitted  by  design  from  the sections  made applicable, the Legislature must be taken  to have  intended  that it should not apply to  elections  held under the Act, and that section 17 should accordingly be  so construed  as  not to defeat that intention.   Reliance  was placed  on  the well-known rules of  construction  that  the provisions of a statute should be read in such manner as  to give effect to all of them, and so as to avoid inconsistency and  repugnancy.  Both the sections can be given their  full effect, it was argued, by holding that by reason of 71 554 the  non-inclusion of Part II under section 8, section 7  of Act No. XLIII of 1951 was inapplicable, and that, subject to that, the other provisions enacted by Parliament would apply under  section  17.  But this argument fails  to  take  into account  the  scheme underlying Act No. XLIX of  1951.   The framers of that Act wanted to enact a comprehensive code  of election  law for Part C States.  They had before  them  Act No.  XLIII  of 1951, and they had to decide how much  of  it they would adopt.  Part I of Act No. XLIII of 1951  consists only of short title and the interpretation section, and that was  adopted  in Act No. XLIX of 195 1. Part II of  Act  No. XLIII    of    1951   deals    with    qualifications    and disqualifications  for  membership.  That subject  is  dealt with in sections 7 and 17 of Act No. XLIX of 1951.   Section 7   sets  out  the  qualifications  and  section   17,   the



disqualifications.    It  may  also  be  noted  that   while disqualification  for  being  chosen  to  either  House   of Parliament is laid down as a disqualification under  section 17  the electoral roll for Parliament is to be  taken  under section  6 as the electoral roll for election to  the  State Assembly  for the concerned area.  These.  provisions  cover the very ground covered by Part 11, and therefore there  was no  need to extend any portion of it under section 8.  Parts III   to  XI  deal  with  the  actual  election   from   the commencement of the notification through all its stages  and matters  connected therewith, and they have been adopted  en bloc  in  Act  No. XLIX of 195 1.  That  being  the  general scheme, it is not possible to read into the omission of Part 11 under section 8, an intention that the  disqualifications mentioned  in section 7 should not apply to  elections  held under  the  Act.   Nor is there  any  inconsistency  between section  8  which passively omits Part II,  and  section  17 which  positively  enacts  that what would  be  a  disquali- fication  under article 102 would be a disqualification  for the purpose of this Act. A  good  deal of argument was addressed to us based  on  the substantial identity of the language of section 17 with that of section 1 1 of Act No. XLIII of 195 1, which also  occurs in Part II, which contains section 7. The contention is that if section 7 of Act No. XLIII of 1951 could be construed  as comprised in section 17 of Act 555 No.  XLIX  of  1951, it should also be  held  to  have  been comprised in section 1 1 of Act No. XLIII of 195 1, in which case, there was no need to enact two provisions in the  same Act,  one overlapping the other.  The simpler thing, it  was argued, would have been to. include section 1 1 in section 7 or  vice  versa.   All this  difficulty  could  be  avoided, according to the respondent, if the reference to article 102 in  section 11 is interpreted as limited to  article  102(1) clauses (a) to (d) and not as including article 102(1)  (e), in  which  case the same construction  should  logically  be adopted for section 17.  But this reasoning is inconclusive, because the scope of section 7 and that of article 102 which is  incorporated by reference in section 11  are  different. It  must  further  be noted that section 1  1  occurs  in  a Chapter  which  deals exclusively  with  qualifications  and disqualifications  for  membership to electoral  college  in Part  C  States.  It is therefore not possible to  draw  any inference from the non-inclusion of section 7 in section  11 or  vice  versa.   On  the.  other  hand,  the  construction contended for by the respondent would give no meaning to the words " disqualified for being chosen as a member of  either House of Parliament " in section 17.  The result is that the qualifications  laid down in section 7 of Act No.  XLIII  of 1951  must be held to be comprised within section 17 of  the Act. It was then contended that even on the footing that  section 7  of Act No. XLIII of 1951 was comprised in section  17  of Act  No. XLIX of 195 1, the respondent was not  disqualified because  under section 7(d) it would be  a  disqualification only  if the candidate had entered into contracts  with  the appropriate  Government,  and  under  section  9(1)  (a)   " appropriate  Government  " would mean, in  relation  to  any disqualification  for  being  chosen  to  either  House   of Parliament, II the.  Central Government," and in relation to any  disqualification  for being chosen to  the  Legislative Assembly or Legislative Council, " the State Government." It was  argued  that  adopting the test that what  would  be  a disqualification  for  being  a member of  either  House  of



Parliament  under  article 102 would under section 17  be  a disqualification for being chosen to the State Assembly, 556 to  operate as a disqualification the contract must be  with the  Central  Government,  that in  the  present  case,  the contracts,  if  any, were with the  Himachal  Pradesh  State Government,  and  that therefore the respondent  was  not  a person who would be disqualified for being elected to either House,  and  would in consequence be  not  disqualified  for being   elected  to  the  State   Legislative   Assembly.        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  section  7(d) read with section 9. The  basis  for  this contention is article 239 of the Constitution, which  enacts that the States specified in Part C shall be administered by the  President through a Chief Commissioner  or  Lieutenant- Governor to be appointed by him.  Reference was also made to article 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 article  239.   The authority  conferred under article 239 to administer Part  C States  has not the effect of converting those  States  into the  Central Government.  Under article 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  centrally administered  under the provisions of article 239,  they  do not  cease to be States and become merged with  the  Central Government.   Articles  240 and 241 provide  for  Parliament enacting  laws for establishing legislative,  executive  and judicial authorities for 557 those  States, and Act No. XLIX of 1951 was  itself  enacted under the power conferred under article 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 article  77  in the name of the President, that  of  Part  C States  is to be taken under section 38(2), in the  name  of the  Chief  Commissioner.  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 sections  7(d)  and 9(1)  of  Act No. XLIII 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 section 7(d) was not in terms extended  to elections  in  Part  C States, and came  in  only  with  the qualifications mentioned in section 17. In  this  view, the further question whether Sri  Padam  Dev held contracts with the Government at the material dates  is only of academic interest.  Counsel for the appellant argued that the statements of law by the Election Tribunal  forming the  foundation  of  its conclusion were  in  many  respects erroneous, and that its findings must therefore be rejected. Thus, it is stated by the Tribunal that a contract could not be  held  to  be  subsisting if  goods  had  been  delivered thereunder, even though the price there for remained due and payable.   This is opposed to the view taken by  this  Court since, 558 in Chatturbhuj Vithaldas v. Moreshwar Parashram Then  again, the Tribunal proceeds on the view that a candidate would  be disqualified only if there was a contract subsisting at  the date of the nomination.  But it was observed in  Chatturbhuj Vithaldas    v.    Moreshwar    Parashram(1)    that     the disqualifications would apply during the whole of the period commencing   with  the  nomination  and  ending   with   the declaration of the election.  But these errors have not,  in fact,  affected  the correctness of the  conclusions.   With reference  to the Mandi contract the finding is  that  goods had been supplied and price received in September, 1951.  As regards the Mahasu contract, the Government placed the order with  the respondent on 19th November, 195 1, and the  goods were supplied in December, 1951, and January, 1952.  It must be  mentioned that the stand taken by the appellant  himself before   the  Tribunal  was  that  the  crucial   date   for determining whether there was a subsisting contract was 12th October,  1951, the date of nomination, and if the  evidence is not precise as to when the goods were supplied, it was  a situation for which he himself was responsible. It  was on the Sirmur contract that the appellant  laid  the greatest  emphasis.  In this case, the order was  placed  by the  Government on 25th September, 1951, and the goods  were actually  supplied  on 1st December,  1951.   The  appellant relied on certain, letters and a telegram which were sent on behalf  of  the  respondent  on  31st  October,  1951,  27th November, 1951, and 30th November, 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  12th October, 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 dispatched  on  1st December, 1951, that was  sufficient  to disqualify  the  respondent, as the terminus ad quo  of  the period during which the (1)  A.I.R. 1954 S.C. 236. 559 disqualification  was  operative was not the  date  of  dec- laration which was 30th November, 1951, but the date of  the publication thereof in the Gazette, which was 20th December, 1951.   It may be conceded in favour of the  appellant  that the  observation of this Court in Chatturbhuj  Vithaldas  v. Moreshwar Parashram (1) 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 conceded 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 contend that the material date is 20th December, 1951. It remains to consider the contention that Sri Padam Dev had procured  the  assistance of Government  servants,  and  had thereby  brought  himself  within the  mischief  of  section 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 Rai  Krushna Bose  v. Binod Kanungo (2), where it was held  that  section 33(2)  conferred the privilege of proposing or  seconding  a candidate on any person who was registered in the  electoral roll,  and  that section 123 (8) could not be  construed  as taking away that privilege.  This objection must, therefore, be overruled. Then there is the question whether the appointment of  Sital Singh  as  polling agent contravened  section  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 (1) A.I.R. 1954 S.C. 236. (2) 1954 S.C.J. 286, 560 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. Section  46  of Act No. XLIII 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 (Con duct of  Elections and   Election  Petitions)  Rules,  1951,   prescribes   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 section 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 Raj  Krushna Bose v. Binod Kanungo (1) with reference to section 33  (2), the  conclusion must follow that such appointment  does  not per se contravene section 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 section 123(8) has, in any manner,  been infringed.



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 (1)  1954 S.C.J. 286. 561 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).   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 section  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  section  123(8)  had   been contravened. In the result, the appeal fails and is dismissed with costs.                                          Appeal dismissed.