Satya Dev Bushahri vs Padam Dev and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 52 of 1954

Decision Date: 25 May, 1954

Coram: B.K. Mukherjea, Vivian Bose, T.L. Venkatarama Ayyar

In the matter titled Satya Dev Bushahri versus Padam Dev and Others, decided on 25 May 1954, the Supreme Court of India heard arguments before a bench comprising Justice B.K. Mukherjea, Justice Vivian Bose, and Justice Aiyyar, T.L. Venkatarama. The petitioner was Satya Dev Bushahri and the respondents were Padam Dev and others. The judgment was delivered on 25 May 1954. The case was reported in the Indian Annual Reports as 1954 AIR 587 and in the Supreme Court Reports as 1955 SCR 549, and it has been cited in subsequent decisions including F 1956 SC 315 (2), F 1956 SC 335 (1), RF 1962 SC 145 (8,9), RF 1975 SC 2299 (412), and D 1985 SC 357 (15). The legal issue concerned the interpretation of the Government of Part C States Act (XLIX of 1951), specifically sections 8 and 17, and whether these provisions excluded the application of section 7(d) of the Representation of the People Act (XLIII of 1951) to elections in Part C states. The case also examined sections 33(2) and 123(8) of the Representation of the People Act (XLIII of 1951), addressing whether a person who proposes or seconds a candidate under section 33(2) is prohibited by section 123(8), and whether the mere appointment of a government servant as a polling agent infringes section 123(8).

The Court explained that section 17 of the Government of Part C States Act (XLIX of 1951) states that any individual disqualified from being chosen to either House of Parliament under any parliamentary act is likewise disqualified from being chosen to a State Assembly. Applying the test set out in Article 102 of the Constitution, the Court held that a person who entered into contracts for supplying goods to a State Government—specifically the Government of Himachal Pradesh in the present case—does not fall within the disqualification criteria for election to either House of Parliament, and consequently is not disqualified from being elected to the State Legislative Assembly of a Part C State. The Court further observed that section 7(d) of the Representation of the People Act (XLIII of 1951) was not extended to Part C state elections and only applied in conjunction with the qualifications specified in section 17 of the Government of Part C States Act. Reading section 17 together with section 8 of the same Act, the Court found that it could not be construed as excluding the application of section 7 of the Representation of the People Act ( XLIII of 1951) to elections conducted under the 1951 Act. Considering the overall scheme of the 1951 Act—especially sections 6, 7, 8 and 17—the Court concluded that it would be inappropriate to infer an intention, from the omission of Part II of the Representation of the People Act under section 8 of the Government of Part C States Act, that the disqualifications listed in section 7 of the Representation of the People Act should not apply to elections held under the Act. Accordingly, the disqualifications prescribed in section 7 of the Representation of the People Act are incorporated within section 17 of the Government of Part C States Act. Finally, the Court noted that section 33(2) of the Representation of the People Act (XLIII of 1951) confers the privilege of proposing or seconding a candidate, a privilege that is not withdrawn by the provisions of section 123(8).

The Court observed that the provision granting any person who was entered in the electoral roll the ability to be proposed or seconded as a candidate, together with section 123(8) of the Representation of the People Act, could not be interpreted as taking away that privilege. After the decision in the instant case, a review application was filed under Civil Miscellaneous Petition No 641 of 1954, and the judgment on that review is reported immediately after the present decision. The Court held that, as a matter of abstract law, the simple appointment of a Government servant as a polling agent does not, by itself and without additional circumstance, infringe section 123(8). The Court found no provision in the Representation of the People Act, 1951 or in the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951 that forbids the appointment of a Government servant as a polling agent, and such an appointment does not per se violate section 123(8). Moreover, the nature of the duties of a polling agent does not inevitably bring the agent within the prohibition contained in that section. The decision in Raj Krushna Bose v. Binod Kanugo (1954 S.C.J. 286) was followed.

The matter proceeded to the Civil Appellate Jurisdiction as Civil Appeal No 52 of 1954. Special Leave was granted by the Court on 25 January 1954 from the judgment and order dated 23 May 1953 of the Election Tribunal, Himachal Pradesh, Simla, in Election Petition No 14 of 1952. Counsel for the appellant and counsel for respondent No 1 appeared. The judgment was delivered on 25 May 1954 by Justice Venkatarama Ayyar. The appeal challenged the order of the Election Tribunal that had dismissed Election Petition No 14 of 1952. On 12 October 1951, five candidates—identified as respondents 1 through 5—were duly nominated for election to the Legislative Assembly of Himachal Pradesh from the Rohru constituency in Mahasu District. Polling was conducted on 23 November 1951 and, on 30 November 1951, the first respondent was declared elected having obtained the highest number of votes. The result was published in the Official Gazette on 20 December 1951. On 14 February 1952, an unsuccessful candidate, Gyan Singh (the fifth respondent), filed Election Petition No 14 of 1952 contesting the validity of the election of the first respondent. He sought to withdraw the petition on 4 August 1952, and the Tribunal permitted the withdrawal by order dated 20 September 1952. The appellant, a voter in the Rohru constituency, then applied to be recorded as the petitioner, and the Tribunal ordered this on 21 November 1952. The petition was subsequently heard on its merits. Although several charges were raised at trial, only two were material for the present appeal: first, that Sri Padam Dev was interested in contracts for supplying Ayurvedic medicines to the Government and therefore was disqualified from being chosen to the Assembly under section 7(d) of the Representation of the People Act XLIII of 1951; and second, that he had procured the assistance of Government servants for his election prospects, allegedly contravening section 123(8) of the same Act.

The Court noted that the second charge against Sri Padam Dev alleged that he had obtained the help of Government servants to promote his election and thereby violated section 123(8) of Act No. XLIII of 1951. The factual basis of this allegation was that a Government employee named Daulataram had signed the nomination paper of Sri Padam Dev as proposer and another Government employee, Motiram, had signed it as seconder; both were employed in the post office. In addition, a man identified as Sital Singh, who was an extra-departmental agent, had been appointed by Sri Padam Dev to act as one of his polling agents at a booth located in Arhal. The Election Tribunal, by its judgment dated 25 September 1953, first held that section 7(d) of Act No. XLIII of 1951 did not apply to elections in Part C States. The Tribunal also found that there was no evidence that any contracts for the supply of Ayurvedic medicines between Sri Padam Dev and the Government were in existence on 12 October 1951, the date of nomination. With respect to the allegation under section 123(8), the majority of the Tribunal members concluded that the provision did not forbid Government servants merely from proposing or seconding a nomination paper, and that the evidence did not show Daulataram or Motiram had performed any act beyond those limited functions. Regarding the appointment of Sital Singh as a polling agent, two members opined that section 123(8) did not prohibit the appointment of a Government servant to that role, while the third member expressed a contrary view. Nonetheless, all members agreed that the issue of appointing a Government servant as a polling agent was not properly raised in the petition and therefore could not be considered. Consequently, the Tribunal dismissed the election petition. The present appeal was filed by special leave against that judgment.

The Court identified the principal question for determination as whether Sri Padam Dev was disqualified from being chosen as a member of the Legislative Assembly because, at the material date, he held contracts for supplying Ayurvedic medicines to the Himachal Pradesh State Government. The answer required an interpretation of the relevant provisions of Act No. XLIX of 1951, which governs elections to Legislative Assemblies in Part C States. Section 17 of that Act provides that a person shall be disqualified for being chosen as, and for being, a member of a State Legislative Assembly if he is, at that time, disqualified for being chosen as, and for being, a member of either House of Parliament under any provision of article 102 of the Constitution. Article 102(1) enumerates several categories of disqualification, of which clause (e) stipulates that a person shall be disqualified if he is so disqualified by or under any law made by Parliament. The Court emphasized that, for the purposes of this appeal, only the disqualification under article 102(1)(e) was relevant. The appellant contended that because Act No. XLIII of 1951 is a law enacted by Parliament, the disqualifications listed in its section 7 should fall within article 102(1)(e) and therefore be attracted by section 17 of Act No. XLIX of 1951 to elections conducted under that Act. The respondent offered several counter-arguments, beginning with the claim that Act No. XLIII of 1951 does not expressly apply to elections in Part C States and thus the appellant could not be deemed a person disqualified under a law that does not operate in that context. The Court indicated that a detailed examination of the language of the statutes was necessary to resolve this contention.

Article 102(1)(e) of the Constitution provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament “if he is so disqualified by or under any law made by Parliament.” In the present appeal the focus is confined solely to this sub-clause. The appellant argues that the Representation of the People Act No XLIII of 1951, being a statute enacted by Parliament, contains disqualifications in its section 7 that fall within article 102(1)(e). Accordingly, the appellant contends that those disqualifications should be attracted to elections conducted under the Elections Act No XLIX of 1951 by virtue of section 17 of that Act. The respondent advanced several replies to this contention. First, the respondent asserted that Act No XLIII of 1951 does not “proprio vigore” apply to elections in the Part C States, and therefore the respondent was not a person disqualified under that law as required by article 102(1)(e). Consequently, the respondent claimed that section 17 of the Elections Act would not affect him. While this line of argument may appear plausible at first glance, a careful examination of the language of section 17 shows that this interpretation is not its true import. Section 17 does not simply state that anyone who is disqualified under a law made by Parliament is automatically disqualified to be chosen under the Elections Act. Rather, the provision enacts that if a person would be disqualified from being chosen to either House of Parliament under an Act of Parliament, then that same person is disqualified from being chosen for the State Assembly. In other words, any ground of disqualification that would bar a candidate from election to Parliament also operates as a ground of disqualification for election to the State Legislature. Under this view, it is irrelevant whether the candidate was themselves disqualified under section 7(d) of Act XLIII of 1951 by the operation of that section; the focus is on the parallel disqualification under parliamentary law.

The respondent’s next line of argument was that, reading section 17 in isolation, or even when read together with section 8 of Act No XLIX of 1951, the provision must be construed to exclude section 7(d) of Act XLIII of 1951. Section 8 of the Elections Act declares that Parts I and III to XI of Act XLIII of 1951, together with the rules made thereunder, apply to all elections conducted under the Elections Act, subject to any modifications the President may direct. Section 7, however, is situated in Part II of Act XLIII of 1951, and Part II is not among the parts extended by section 8. The respondent therefore submitted that the omission of Part II from the schedule of parts applicable under section 8 was intentional, indicating that the legislature did not intend for section 7 to apply to elections held under the Elections Act. Accordingly, the respondent argued that section 17 should be interpreted so as not to defeat that legislative intention. The respondent relied upon the well-known rules of statutory construction that require statutes to be read in a manner that gives effect to all their provisions and avoids inconsistency or repugnancy. By this reasoning, the respondent maintained that both section 7 and section 8 could be given their full effect if it were held that, because Part II was omitted from the application of section 8, section 7 of Act XLIII of 1951 is inapplicable to the elections in question, and that the remaining parliamentary provisions would nonetheless be attracted by section 17.

In this case, the Court observed that the contention that both sections could be given their full effect by treating section 7 of Act No. XLIII of 1951 as inapplicable—on the ground that Part II was not included under section 8 of Act No. XLIX of 1951—and that, subject to that, the other provisions enacted by Parliament would then operate under section 17, fails to appreciate the overall scheme of Act No. XLIX of 1951. The Court explained that the framers of Act No. XLIX of 1951 intended to create a comprehensive code of election law for the Part C States. They were aware of the existence of Act No. XLIII of 1951 and had to decide which portions of that earlier Act they would incorporate. Part I of Act No. XLIII of 1951 contains only the short title and the interpretation clause, and those elements were adopted verbatim in Act No. XLIX of 1951. Part II of Act No. XLIII of 1951 deals with qualifications and disqualifications for membership; these matters are addressed in sections 7 and 17 of Act No. XLIX of 1951, where section 7 specifies the qualifications and section 17 specifies the disqualifications. The Court further noted that, although disqualification for being chosen to either House of Parliament is listed as a ground for disqualification under section 17, the electoral roll for Parliament is to be prepared under section 6 in the same manner as the electoral roll for election to the State Assembly for the relevant area. These provisions therefore cover the subject matter that is dealt with in Part II, and consequently there was no necessity to extend any part of Part II under section 8. The Court stated that Parts III to XI of Act No. XLIII of 1951, which deal with the conduct of elections from the issuance of the notification through all subsequent stages and related matters, were adopted in their entirety by Act No. XLIX of 1951. Given this overall design, the Court concluded that the omission of Part II from the schedule of section 8 cannot be read as an intention to exclude the disqualifications set out in section 7 from applying to elections held under the new Act. Moreover, there is no inconsistency between section 8, which simply omits Part II, and section 17, which expressly provides that a disqualification that would arise under article 102 of the Constitution is to be regarded as a disqualification for the purposes of this Act. The Court also addressed a separate line of argument that highlighted the substantial similarity in the wording of section 17 of Act No. XLIX of 1951 and section 11 of Act No. XLIII of 1951, the latter also being situated in Part II alongside section 7. The argument advanced that if section 7 of Act No. XLIII of 1951 could be deemed to be incorporated in section 17 of Act No. XLIX of 1951, then it should likewise be considered to be incorporated in section 11 of Act No. XLIII of 1951, making the duplication unnecessary. The contention further suggested that a simpler approach would have been to merge section 11 into section 7 or vice versa. The Court rejected this line of reasoning, indicating that the presence of overlapping provisions does not imply a legislative mistake and that the structure adopted by the legislature reflects a deliberate choice to address qualifications and disqualifications in distinct sections within the new comprehensive code.

The respondent argued that the difficulty could be avoided if the reference to article 102 in section 11 were interpreted as limited to the clauses (a) to (d) of article 102(1) and excluded clause (e). He further maintained that, under that interpretation, the same construction should logically be applied to section 17 of the Act. The Court found this line of reasoning inconclusive because the scope of section 7 differs from the scope of article 102 that is incorporated by reference in section 11. It also noted that section 11 appears in a chapter devoted exclusively to qualifications and disqualifications for membership of the electoral college in the Part C States. Consequently, no inference could be drawn from the fact that section 7 is not included in section 11, nor from any reverse inclusion. Moreover, the respondent’s proposed construction would render the phrase ‘disqualified for being chosen as a member of either House of Parliament’ in section 17 meaningless. Therefore, the Court concluded that the qualifications enumerated in section 7 of Act No. XLIII of 1951 must be regarded as incorporated within section 17 of Act No. XLIX of 1951. Having accepted that incorporation, the respondent next claimed that he was not disqualified because section 7(d) imposes disqualification only when a candidate has entered into contracts with the ‘appropriate Government.’ Section 9(1)(a) defines ‘appropriate Government’ as the Central Government for disqualifications concerning either House of Parliament, and as the State Government for disqualifications concerning the Legislative Assembly or Legislative Council. The argument advanced that, to make a contract a ground for disqualification under section 17, the contract must be with the Central Government, and that in the present case any contracts were with the Himachal Pradesh State Government. Consequently, the respondent asserted that he could not be disqualified for election to either House of Parliament, and therefore also could not be disqualified for election to the State Legislative Assembly. The appellant accepted the factual correctness of that position but contested its legal effect, insisting that, as a matter of law, the contracts entered into by Sri Padam Dev were with the Central Government. On that basis, the appellant argued that the respondent should be deemed disqualified under section 7(d) read with section 9. The appellant’s contention relied upon article 239 of the Constitution, which provides that the Part C States are administered by the President through a Chief Commissioner or Lieutenant-Governor appointed by him. Reference was also made to article 77, which states that all executive action of the Government of India is to be taken in the name of the President.

The Court explained that article 77 of the Constitution provides that all executive action of the Union of India must be expressed to be taken in the name of the President. The appellant argued that because the President is the executive head of the Part C States, any contract entered into with a Part C State is, in law, a contract with the Central Government. The Court held that this reasoning is fundamentally flawed, for the President acting as head of a Part C State does not perform the role of the executive head of the Union, but rather exercises powers that are specifically conferred on him under article 239. The authority granted by article 239 to administer Part C States does not transform those States into the Central Government, and under that article the President’s position with respect to a Part C State is comparable to that of a Governor in a Part A State or a Rajpramukh in a Part B State. Although Part C States are centrally administered pursuant to article 239, they do not cease to exist as separate States nor merge with the Union. Articles 240 and 241 empower Parliament to enact legislation for establishing legislative, executive and judicial authorities for those States, and Act No. XLIX of 1951 was enacted under the authority conferred by 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. Consequently, while executive action of the Union is taken in the name of the President under article 77, executive action of a Part C State is taken in the name of the Chief Commissioner under section 38(2). There is therefore no legal basis for treating contracts with Part C States as contracts with the Central Government. Moreover, the appellant has not produced any evidence that Sri Padam Dev entered into a contract with the Central Government; the record shows only that his dealings were with the Chief Commissioner who administered the State of Himachal Pradesh. The Court therefore concluded that the appellant’s contention that Sri Padam Dev’s contracts were with the Central Government cannot be supported either by law or by fact. The Court acknowledged that it might appear anomalous that sections 7(d) and 9(1) of Act No. XLIII of 1951 make a contract with the State a disqualification for election to the State Legislature, while a contract with the Central Government is a disqualification for election to either House of Parliament, yet the respondent is not disqualified for election to the State Legislature when he holds a contract with the State Government. This outcome is explained by the fact that section 7(d) was not extended to elections in Part C States and applied only in conjunction with the qualifications enumerated in section 17. As a result, the further question of whether Sri Padam Dev held contracts with the Government at the relevant dates is only of academic interest.

In this case, the Court observed that the question of whether Sri Padam Dev held contracts with the Government on the relevant dates was merely academic. The appellant’s counsel argued that the statements of law made by the Election Tribunal, which formed the basis of its conclusion, were substantially erroneous and therefore should be set aside. The Tribunal had held that a contract could not be said to be subsisting if the goods under it had already been delivered, even though the price remained due and payable. This position contradicted the Court’s earlier view in Chatturbhuj Vithaldas v Moreshwar Parashram, where it was held that a contract remains in force until the consideration is fully settled. The Tribunal also maintained that a candidate would be disqualified only if a contract existed at the date of nomination. However, the Court had previously observed in the same case that disqualifications apply for the entire period beginning with the nomination and ending with the declaration of the election. Despite these errors in the Tribunal’s reasoning, the Court found that they did not affect the correctness of its ultimate conclusions.

The Court then examined the specific contracts in question. Regarding the Mandi contract, the finding was that goods had been supplied and payment received in September 1951. For the Mahasu contract, the Government had placed the order with the respondent on 19 November 1951, and the goods were supplied in December 1951 and January 1952. The appellant had himself asserted before the Tribunal that the critical date for determining whether a contract was subsisting was the nomination date of 12 October 1951, and that any lack of precise evidence on the timing of delivery was a matter for which he was responsible. The appellant placed greatest emphasis on the Sirmur contract. In that case, the Government issued the order on 25 September 1951, and the goods were actually supplied on 1 December 1951. The appellant relied on certain letters and a telegram sent on behalf of the respondent on 31 October 1951, 27 November 1951, and 30 November 1951, arguing that these amounted to acceptance of the contract. However, the Tribunal did not consider any submission that the material date was 12 October 1951, and the Court held that, being a question of fact, the appellant could not at this stage introduce a new and inconsistent claim that the contract had been accepted in October or November 1951. Even assuming acceptance occurred when the goods were dispatched on 1 December 1951, the Court noted that disqualification would not be triggered by the declaration date of 30 November 1951 but rather by the date of publication in the Gazette on 20 December 1951. Consequently, the appellant’s attempt to shift the material date was rejected.

In this case the Court noted that it could be conceded in favour of the appellant that the observation made by this Court in Chatturbhuj Vithaldas v Moreshwar Parashram (1) – namely that the material period begins with the nomination and ends with the announcement – was not a definitive decision on that point because it was based on an agreed statement of counsel from both sides. Nevertheless, the appellant had admitted before the Tribunal that the material date was the date of nomination and the entire proceeding was conducted on that basis. Consequently, the Court held that the appellant could not now alter his position and claim that the material date was 20 December 1951. The Court then turned to the appellant’s contention that Sri Padam Dev had obtained assistance from Government servants, thereby falling within the prohibition contemplated by section 123(8). The principal objection raised before the Tribunal under this heading concerned the subscription of the nomination paper by Daulataram as proposer and Motiram as seconder. The Court observed that this issue had been decided against 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) gave any person registered in the electoral roll the privilege of proposing or seconding a candidate and that section 123(8) could not be interpreted as removing that privilege. On the basis of that precedent, the Court concluded that the objection must be overruled.

The Court then examined whether the appointment of Sital Singh as polling agent violated section 123(8). It recorded that the majority of the Tribunal believed that the appointment of a Government servant as a polling agent was not, by itself, objectionable, whereas the third member expressed a contrary view. However, the Tribunal members agreed to decide the point against the appellant because the issue had not been expressly raised in the petition. The appellant argued that, since the trial admitted that Sital Singh had been appointed as a polling agent, the question remained open as a pure question of law. The Court noted that the facts were admitted, the issue had already been considered by the Tribunal, and the matter was of considerable practical importance, prompting the Court to hear arguments on it. Section 46 of Act No XLIII of 1951 empowers a candidate to appoint, in the prescribed manner, any number of agents and relief agents as may be prescribed to act as polling agents at each polling station. Rule 12 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, sets out the formalities for such appointments, and Form 6 prepared under those rules requires the polling agent to sign a declaration that he will not do anything prohibited by section 128. Section 128 obliges every agent to maintain and assist in maintaining the secrecy of voting. Accordingly, the Court found that there is nothing in the Act or the Rules that bars the appointment of a Government servant as a polling agent.

The Court observed that, based on the reasoning applied in Raj Krushna Bose v. Binod Kanungo and the reference to section 33, the appointment of a government servant as a polling agent does not, by itself, violate section 123(8). The Court further explained that the duties assigned to a polling agent consist solely of the identification of voters, and that this function, in isolation, does not constitute an act that advances the electoral prospects of any candidate. Consequently, provided that a polling agent limits his activities strictly to the identification of voters, no infringement of section 123(8) can be said to have occurred. The appellant contended that, setting aside theoretical considerations and focusing on practical politics, the selection of a government official as a polling agent by one candidate could heavily disadvantage the opposing candidate. The appellant suggested that situations might arise in which the presence of a high-ranking government official serving as a polling agent could become a source of unfair electoral practices. The Court acknowledged that, if it were proven that a candidate or his agent had misused the appointment of a government servant as a polling agent to further personal electoral aims, such conduct could be treated as a breach of section 123(8). However, the matter before the Court was whether, as a matter of pure law, the mere act of appointing a government servant to the role of polling agent constitutes a violation of section 123(8) without any additional wrongdoing. The Court answered this question in the negative. In the facts of the present case, the Court found that Sital Singh performed only the duties of a polling agent and did nothing beyond that role. Moreover, there was no finding that the respondent had used his presence at the polling station to promote his own election prospects. Accordingly, the Court concluded that there were no grounds to hold that section 123(8) had been contravened. As a result, the appeal was dismissed, and costs were awarded against the appellant.