SATYA DEV BUSHAHRI versus PADAM DEVAND OTHERS

.candidate or his agent had abused the right to appoint= m95¢0a Government servant. as polling agent by exploiting—the situation for furthering his election prospects, thenSayae_ the matter can be dealt with as an infringement of=._section 123(8). But the questionwhichwe have got to “"Padam Dev|decideiswhether as an abstract proposition oflaw'theand Others.mere appointment of4 Government servant as poll.shatan_ofing agent is in itself and without more an infringement onnie section 123(8).- Our answer is in the negative. In_the present case, the finding is that beyond actingags== ~~polling agent Sital Singh did nothing. Noristhereany°finding that the respondent in any manner availed aehimself of his presence at the polling booth: to-further__his ownelection prospects.Thus thereare no grounds> for holding that section.123(8) had been contravened...~~ _In the result, the appeal fails and is dismissed withcosts...|;oo®me7aAppeal dismissed.

.SATYA DEV BUSHAHRI

+ :’< [Muxuerges, Vivian Bose and ee VENKATARAMA AYYAR JJ.]ee;

Representation of the People Act (XLIII of 1951), ss. 7(8) and‘States9-—General Clauses Act (X of 1897),s. 3(8)—Government of Part C_Part Act (XLIX of 1951), s.17—Government contract with the State Government whether contract with the Central Govern- re_ ment-—-And thus disqualification for election to Legislative Assem-oeADITbly of State under s. 17 of Act XLIXof 1951 read with s. 7(d) of Act.of 19516

ofHeld, (modifying the view of law taken in Civil Appeal No. 52 1954) that in view of section 3(8) ofthe General Clauses Act,1897, contract with the Chief Comimissioner in PartG State.(in this casa Himachal Pradesh Chief Commissioner} is acontractwiththefor election Central tothe Government Legislative Assembly and that would of the be State a. disqualification under section17 of Act XLIX of,1951, read with section 7(d) of Act XLIIIof_1951.. Civin APPELLATE— JURISDICTION; reCivil Miscella-neous Petition No, 64] of 1954,=_

. re| -~_it

Satya Deu Bushahri v. Padam Dev and Others.

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 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 elec-tion 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 true construc-tion of section 17, what would be disqualification for election to either House of Parliament under article 102 would, under that section, be · disqualification for election to the Legislatures of Part 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. 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, contract to operate. as a' disqualification to the election .to either House of Par-liament must be with the Central Government, whereas

the contracts of the respondent were with the Govern-ment of Himachal Pradesh. The answer of the petitioner to this contention was that under article 239 the administration of Part States was vested in the President acting through the Chief Commissioner or the Lieutenant-Governor, and that the contracts of the respondent with the Chief Commissioner, Himachal Pradesh, must be held to be contracts with the Central Government. We, however, disagreed with this con-tention, and held that article 239 had not the effect of merging States with the Central Government, and converting contracts with the States into those with the Central Government.

In this application, Mr. Chatterjee appearing for the petitioner invites our attention to the definition of "Central Government" in section 3(8) (b) (ii) of the General Clauses Act. It is as follows :

"Central 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 Part State, the Chief Commissioner or Lieutenant-Governor or Govern-· ment of 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 Govern-ment, 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 Part State, the Governor, in Part State ,the Rajpramukh; and in Part State the 'Central Government."

Satya Dev Bushahri v. Padam Dev and Others.

Venkatarama Ayyar J.

Snt)'a Dev Bushahri v

Padam Dev and Others.

V enkatarama Ayya' J.

there. But the contrary conclusion also involves the anomaly already pointed out, that in Part States contract with the State Governmeµt is not disqualifica-tion for election even to the State Legislature, as it is in Parts and 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, contract with the Chief Commissioner in Part State is contract with the Central Government, and that would be disqualification for election to the Legisla-tive 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 Govern-ment servants to act as polling agents, and had thereby committed major corrupt practice under section 123(8) of Act No. XLIII of 1951. In rejecting this contention we observed that, "as an abstract proposi-tion of law, the mere appointment of Government servant as polling agent in itsdf and without more" is not an infringement of section 123(8). The correct-ness of this conclusion is now challenged by Mr. Chatterjee. His contention is that having regard to the nature of the duties of 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 polling agent under the Rules and under the Election Manual, they

Salva Deu , Bushahri v.

Padam Deu and Others. Venkatarama; Ayyar J.

1954 Satya Dev Bushahri v. Padam Dev and Others. ·VenkaJarama Ayy"' J·

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 doubt as to the identity of voter, the presiding officer may interrogate the voter and that he should do so, if so required by 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 persona-tion, and that 1s 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 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

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 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 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 follow-ing 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. 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 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 prohibi-tion 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

Satya Dev Bushahri v. Padam Dev and Others. Venkatarama Ayyar J.

1954 Act. To hold that Government servants are, as such ~atya Div and as class, disqualified to act as polling agents Bushahri would be to engraft an exception to the statute, v. PadamDev which is not there. .and Others. Accordingly, we reaffirm the view taken by us that Jl AJ)'ar enkatarama J. the appointment of Government servant as poll~ng agent does not, without more, contravene sect10n 123(8). It is scarcely necessary to repeat our observa-tion in the original judgment that "if it is made out that the candidate or his agent had abused the right to appoint 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

BOMBAY EDUCATION SOCIETY AND OTHERS. (With COnnected Appeals)

1954 [MEHR CHAND MAHAJAN C.J., S. R. DAs, GHULAM May 26. HASAN, BHAGWATI and JAGANNADHADAS JJ.J

Constitution of India-Articles 29, 30(1), 337 Second Provisa-Government 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 recognised Anglo-Indian School called Barnes High School at Deolali which receives aid from the State of Bombay. J and 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 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~ class where English is used as the medium