# SATYA DEV BUSHAHRI* v. PADAM DEV AND OTHERS - **Citation:** [1955] 1 S.C.R. 549 - **Court:** Supreme Court of India - **Decided:** 1954-01-25 - **Case number:** Civil Miscellaneous Petition No. 641 of 1954 - **Bench:** MuKHERJEA, VIVIAN BosE, Venkatarama Ayyar Jj - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satya-dev-bushahri-v-padam-dev-and-others-359 - **Pages:** 13 ## Headnote 549 Government of Part C States Act (XLIX of 1951), ss. 8 and 17-Whethe • 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 1951. 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 1s 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 II, 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 1951. That being the general scheme, it 1s not possible to read into the omission of Part II under section 8, an intention that the disqualifications mentioned in section 7 should not apply to elections held under the Act. Nor 1s there any inconsistency between section 8 which passively omits Part II, and section 17 which positively enacts that what would be a disqualification under article 102 would be a disqualification for the purpose of this Act. . -... -I A good deal of argument was addressed to us based on the substantial identity of the language of section 17 with that of section 11 of Act No. XLIII of 1951, 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 - - C- S.C.R. SUPREME COURT REPORTS 555 No. XLIX of 1951, it should also be held to have been comprised in section 11 of Act No. XLIII of 1951, m which case, there was no need to enact two provisions m the same Act, one overlapping the other. The simpler thing, it was argued, would have been to include section 11 in section 7 or vice versa. All this difficulty could be avoided, according to the respondent, if the reference to article 102 in setcion 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 reasonmg ts inconclusive, because the scope of section 7 and that of article 102 which ts incorporated by reference in section 11 are different. It must further be noted that section 11 occurs m a Chapter which deals exclusively with qualifications and disqualifications for membership to electoral college in Part C States. It 1s 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 1s that the qualifications laid down m 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 m section 17 of Act No .. XLIX of 1951, 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, m relation to any disqualification for being chosen to either House of Parliament, "the Central Government," and m 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, 17-87 S. C. India/ 59 1954 Satya Dev Bushahri v. Padam Dev and Others. Venkatarama Ayyar ]. Satya Dev Bushahri v. Padam Dev .and Others. IV en};atararr.a AY.Yar J 556 SUPREME COURT REPORTS [1955] to operate as a diqualification 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 execut!ve 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 Gov.ernment, 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 authoritia for / - - ,_ - - - J 'S.C.R. SUPREME COURT REPORTS 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 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, 1951, and the goods were supplied m 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 despatched on 1st December, 1951, that was sufficient to disqualify the respondent, as the terminus ad qua of the period during which the (t) A.LR. 1948.C. 236. - ' - t I' - ' - -- S.C.R. SUPREME COURT REPORTS 559 disqualification was operative was not the date of declaration which was 30th November, 1951, but the date of the publication thereof in the Gazette, which was 20th December, 1951. It may be conceded 111 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 procedeed 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 111 a recent decision of this Court reported in Raj Krushna Bose v. Binod Kanungo( 2 ), where it was held that section 33(2) conferred the privilege of proposmg or seconding a candidate on any person who was registered m 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 appointmept of Sita! 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 11) A.I.R. 1954 S. C. 236. (2) 1954 S.C.J. 286. 1954 Satya Dev Bushahri v. Padam Dev and Others. Venkatarama Ayyar J. .1954 Satya Dev Busha!iri v. Padam Dev and Others. Venkatarama Ayyar J. 560 SUPREME COURT REPORTS [1955J 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 argument on it. Section 46 of Act No. XLIII of 1951 empowers a can- . didate 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 (Conduct 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 Krnshna Bose v. Binod Kanungo(') with reference to section 33 (2), the .conclusion must follow that such 'l)Jpointment 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 :i 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 (r) 1954 S.C.J. 286. - - ' ;"" -