# Satya Deu Bushahri v. Padam Dev and Others

- **Citation:** [1955] 1 S.C.R. 561
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Appeal No. 52 of 1954
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satya-deu-bushahri-v-padam-dev-and-others-360
- **Pages:** 8

## Headnote

1954
Satya Deu
Bushahri
v.
Padam Dev
and Others.
562
SUPREME COURT REPORTS
[1955]
Application for review of the Judgment of this
Court in Civil Appeal No. 52 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 di.sqmlified for election to the Assembly under section 17 of Act No. XLIX
of 1951, read with section 7( d) of Act No. XL!II of 1951,
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 · a 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 1951. 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 μot disqualify him, because under that section,'
.. the· disqualification must. be to being electe_d
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
.
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·s.C.R.
SUPREME COURT REPORTS
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 contention, 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 Government" 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 Govern-·
ment 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:

## Text

1954
Satya Deu
Bushahri
v.
Padam Dev
and Others.
562
SUPREME COURT REPORTS
[1955]
Application for review of the Judgment of this
Court in Civil Appeal No. 52 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 di.sqmlified for election to the Assembly under section 17 of Act No. XLIX
of 1951, read with section 7( d) of Act No. XL!II of 1951,
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 · a 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 1951. 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 μot disqualify him, because under that section,'
.. the· disqualification must. be to being electe_d
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
.
).
• •
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-
'J
·s.C.R.
SUPREME COURT REPORTS
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 contention, 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 Government" 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 Govern-·
ment 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."
1954
Satya Dev
Bushahri
v.
Padam Dev
and Others.
Venkatarama
Ayyar J.
1954
Snt)'a Dev
Bushahri
v
Padam Dev
and Others.
V enkatarama
Ayya' J.
564
SUPREME COURT REPORTS
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 mustbe 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 theConstitution.
It merely
recogrues
that those
States
are centrally administered through the President underarticle 239,
and enacts
that
the
expression "Central
Government" should include the Chief Commissioneradministering 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 1951, the·
words "the Chief Commissioner acting within the scopeof 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 Govern-.
ment, 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 m Part A or Part B a contract with the State
~ould operate _ as
disqualification
only for
election
to the State Legislatures, such a contract would m
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-
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S.C.R.
SUPREME COURT REPORTS
565
there. But the contrary conclusion also involves the
anomaly already pointed out, that in Part C States a
contract with the State Governmeμt 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 n:spondent 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 itsdf 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 further elucidated by the
instructions contained in the Election Manual issued bv
the Government, the polling agent must be held to ~
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 dutie:> of a polling agent
under the Rules and under the Election Manual, they
1954
Salva Deu
,
Bushahri
v.
Padam Deu
and Others.
Venkatarama;
Ayyar J.
1954
Satya Dev
Bushahri
v.
Padam Dev
and Others.
·VenkaJarama
Ayy"' J·
566
SUPREME COURT REPORTS
[1955]
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 1s 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 dutv 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 he 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 1s 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 elecrors."
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 1s reached after the polling
1s 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
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S.C.R.
SUPREME COURT R~PORTS
567
packages, and the polling agents have the right to seal
all of them.
It canot 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 m our judgment,
the duty of polling agent 1s 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 Parkar'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 openmg of the poll for
the purpose of mutual discussion and co-operation."
What that passage means 1s that as the duty to be
performed by the polling agertts at the several booths
1s
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 1s
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
1954
Satya Dev
Bushahri
v.
Padam Dev
and Others.
Venkatarama
Ayyar J.
1954
~atya Div
Bushahri
v.
PadamDev
.and Others.
Jl enkatarama
AJ)'ar J.
1954
May 26.
.568
SUPREME COURT REPORTS
(1955]
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
poll~ng
agent does
not, without
more, contravene sect10n
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.
THE STATE OF BOMBAY
v.
BOMBAY EDUCATION SOCIETY AND OTHERS.
(With COnnected Appeals)
[MEHR
CHAND MAHAJAN C.J., S. R. DAs, GHULAM
HASAN, BHAGWATI and JAGANNADHADAS JJ.J
Constitution of India-Articles 29, 30(1), 337 Second ProvisaGovernment Circular-Prohibiting
admission
into
Schools
main·
tained or aided by State on the ground of language of citizens-
)-.__
Such circular whether ultra vires of Articles 29(2) and 337 Second
~
Provisa-Article 29(1)
and 30(1)
of the
Constitution-Word
"Namely"-Meaning of.
The Education Society of Bombay (respondent No. I) has been
running a recognised
Anglo-Indian
School
called Barnes
High
School at
Deolali which receives aid from the
State of Bombay.
J and G are its Directors. English is used in the said school as the
medium of instruction. The mother tongue of the Anglo-Indians is
English. The State of Bombay issued a circular order on 6th
January, 1954, headed "Admission to
Schools
teaching
through
the medium of English."
The operative
portion
of the
order
·enjoined that no primary or secondary school shall from the date
·Of the order admit t~ a class where English is used as the medium
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